UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


:^ 


flj 


THE        "~ 


LAW  OF  CONTRACTS. 

BY 

JOHN  WILLIAM  SMITH,  Esq., 

LATE  OF  THE  INNER  TEMPLE,"bARKISTER-A T-LAW, 
ATTTHOB  OF  "LEADING  CASES,"  "A  TREATISE  ON   MERCANTILE  LAW," 

ETC. 

^fuenfh  gimerican, 

FROM  THE  EIGHTH  LONDON  EDITION. 


VINCENT  T.  THOMPSON,  Esq.,  M.  A., 

OF  LINCOLN'S  INN,  AND  OF  THE  NORTH-EASTERN   CIRCUIT,  BARKISTEE-AT-LAW 
ASSISTANT  RECORDER  OF   LEEDS. 

WITH 

NOTES   AND   REFERENCES   TO    BOTH    ENGLISH   AND   AMERICAN 
DECISIONS, 

BT 

WILLIAM  HENRY  RAWLE 

AND 

GEORGE  SHARSWOOD,  LL.  D. 


AND  WITH 

ADDITIONAL   NOTES   AND   REFERENCES   TO  RECENT   AMERICAN 

CASES, 

By  JOHN  DOUGLASS  BROWN,  Jr. 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON  &  CO., 

535  Chestnut  Street, 
1885. 


0^7.  f 

^  w  7 


Entered  aoeording  to  the  Act  of  Congress,  in  the  year  1885| 

BY  T.  A  J.  W.  JOHNSON  A  CO. 
kB  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


i, 


k-H~!>*\ 


PREFACE 

TO   THE   SEVENTH   AMERICAN    EDITION. 


rriHE  text  of  this  edition  is  that  of  the  last  (eighth) 
English  edition.  The  elaborate  annotations  of  his 
distinguished  predecessors  (which  have  been,  with  very 
slight  exceptions,  retained)  have  made  it  unnecessary 
for  tlie  present  American  editor  to  add  much  distinct- 
ively new  matter,  and  his  work  has  been  mainly  the 
rearrangement  of  this  material,  and  the  citation  of 
later  authorities.  The  notes  of  Mr.  Eawle  and  Judge 
Sharswood  have  been  indicated  by  the  letters  R.  and  S. 
respectively.  Where  it  seemed  proper  to  distinguish 
new  matter  inserted  in  these  notes,  it  hjis  been  enclosed 
in  brackets. 

The  citations  throughout  the  American  notes  have 
been  carefully  verified  by  A.  H.  Wintersteen,  Esq.,  of 
the  Philadelphia  Bar. 

J.  D.  B.  Jr. 


Philadelphia,  May  1st,  1885. 


lU 


PREFACE 

TO    THE    EIGHTH    ENGLISH    EDITION. 


TN  bringing  this  Edition  of  Smith's  Lectures  on  the 
Law  of  Contracts  up  to  the  existing  state  of  the 
law,  the  present  Editor  has  endeavoured  as  before  to 
make  his  own  additions  as  short  as  possible,  confining 
them  to  cases  of  real  importance  and  to  such  alterations 
as  were  rendered  necessary  by  recent  legislation.  The 
Editor  trusts  that  the  present  Edition  will  be  found  no 
less  acceptable  than  its  predecessors. 

It  may  be  interesting  to  add  that,  as  appears  from 
the  preface  to  the  First  Edition,  these  lectures  were 
delivered  at  the  Law  Institute  in  1842;  at  which  time 
the  Author  was  thirty-three  years  old  {vide  the  interest- 
ing memoir  of  the  late  John  William  Smith,  by  the 
late  Samuel  Warren,  Esq.,  Q.C.,  which  originally 
appeared  in  Blackwood,  vol.  61,  and  which  has  since 
been  included  in  the  edition  of  Mr.  Warren's  Works). 
The  First  Edition  was  brought  out  in  1846,  after  the 

V 


Vi  PREFACE. 

Author's   death,   by    Mr.    Jelinger   C.    Symons.     The 

subsequent  editions  up   to  the  sixth  were  by  the  late 

Mr.    J.   G.  Malcohn,   formerly   Master  of  the   Crown 

Office.     For   the   Sixth   and   subsequent  Editions  the 

present  editor  is  responsible. 

V.  T.  T. 

Pease's  Buildings,  South  Parade,  Lkeds, 
i)ec-18S4 


CONTENTS. 

[the  figures   refer  to   the   MARGlNAIi   PAGES.] 

LECTURE   I. 

PAOV 
ON  THE    NATURE  AND    CLASSIFICATION  OF    CONTRACTS,   AND    ON    CON- 
TRACTS BY   DEED,      . 1. 

LECTURE   D. 

THE  NATURE  OF  SIMPLE  CONTRACTS; — OP  WRITTEN  CONTRACTS. — 
PATENT  AND  LATENT  AMBIGUITIES. — WHERE  WRITING  MAY  BE 
QUALIFIED   BY   EVIDENCE   OF   USAGE. — THE  STATUTE  OF   FRAUDS,  .        40 

LECTURE  IIL 

THE  FOURTH  SECTION  OF  THE  STATUTE  OF  FRAUDS. — PROMISES  BY 
EXECUTORS  AND  ADMINISTRATORS. — GUARANTIES. — MARRIAGE  CON- 
TRACTS.— CONTRACTS  FOR  THE  SALE  OF  LANDS. — AGREEMENTS  NOT 
TO   BE   PERFORMED   IN   A  YEAR, 102 

LECTURE  IV. 

SALE  OF  GOODS,  ETC.,  UNDER  THE  SEVENTEENTH  SECTION  OF  THE 
STATUTE  OP  FRAUDS. — OTHER  CONTRACTS  WHERE  WRITING  IS  OB 
HAS  BEEN  NECESSARY. — POINTS  APPLYING  TO  ALL  SIMPLE  CON- 
TRACTS.— ASSENT. — OFFER  AND  ACCEPTANCE. — CONSIDERATION  OF 
CONTRACTS   BY   DEED   AND   OF   SIMPLE  CONTRACTS, 141 

LECTURE  V. 

CONSIDERATION  OP  SIMPLE  CONTRACTS. — EXECUTED  CONSIDERATIONS.— 
WHERE  EXPRESS  REQUESTS  AND  PROMISES  ARE  OP  AVAIL. — 
MORAL  CONSIDERATIONS. — ILLEGAL  CONTRACTS. — RESTRAINTS  OP 
TRADE, 183 

vii 


Vm  CONTENTS. 

LECTUKE    VI. 

FAOa 
ILLKOAL      CONTRACTS. —  FRAtTD, —  GAMING      AND       HORSE-RACING. — 

WAGERS, 231 

LECTURE  VII. 

THE  lord's  day  ACT. — SIMONY. — ILLEGAL  WEIGHTS  AND  MEASTIRES. — 
CONTRACTS  BY  ILLEGAL  COMPANIES. — ASSIGNMENT  OF  CONTRACTS. 
— BILLS  OF  EXCHANGE  FOR  ILLEGAL  CONSIDERATION. — RECOVERY 
OF  MONEY   PAID   ON   ILLEGAL   CONTRACTS, 277 

LECTURE  VIII. 

FARTIES  TO  CONTRACTS. — INFANTS. — MARRIED   WOMEN, 307 

LECTURE  IX. 

PARTIES  TO  CONTRACTS. — INSANE  PERSONS. — INTOXICATED  PERSONa 
— ALIENS. — CONVICTS. — CORPORATIONS. — PUBLIC  COMPANIES. — THE 
MODE  IN  WHICH  COMPETENT  PERSONS  CONTRACT. — AGENTS. — 
PARTNERS 356 

LECTURE  X. 

PRINCIPAL  AND  AGENT. — THEIR  RESPECTIVE  LIABILITIES. — AGENCY 
OF  PARTNERS,  BROKERS,  FACTORS,  WIVES. — RECAPITTTLATION. — 
REMEDIES  BY  ACTION. — STATUTES  OF  LIMITATION. — CONSTRUCTION 
OP  CONTRACTS, 434 


TABLE  OF  CASES. 

[the  figures  befer  to  the  marginal  pages.] 


A. 

PAGE 

Abel  V.  Sutton, 462 

Ahrey  v.  Crux, 44 

Adams  v.  Eankart, 456 

r.  Clutterbuck, 365 

V.  Dansey, •  107 

V.  I.indsell, 163 

V.  AVordley, 44 

Addison  v.  Gandasequi,     ....  443 
Alcenius  v.  Nygrin,    ....  239,  367 

Alchin  V.  Hopkins, 291 

Alderson  v.  Maddison,   .    .    .  101,  131 

Alexander  v  .Sizer, 401 

Alliance  Bank  of  .Simla  v.  Casey,  306 

Allsopp  v.  Wheatcroft, 221 

.'Vmbrose  v.  Harrison,     .....  495 

Anderson  v  KadcIiHe, 238 

Anon.  (Godb.), 431 

(Show.), 419 

Ansell  ('   i;aker, 30 

Applegarth  v.  Colley, 264 

Archer  v.  Bavnes, 147 

V.  Marsh, 180,  227 

Arkwriglit  v.  Cantrell, 235 

Armstrong  v  Stokes,  445,  446,  450,  451 
Arnold  c.  Mayor  of  Poole,    .    .    .  370 
Ashburv   Railwav    Carriage    and 
Iron  Co.  r.  Riche,   ..."...  398 

Ashby  V.  .James,      533 

Aslicroft  r.  .Morrin, 150 

Ashmole  r.  Wainwright,   ....  236 

Ashpitel  V.  Bryan, -28 

Ashwortli  V.  Gutram,      .    .    .  338,  348 
Athenreura  Life  Assurance  Co.,  in 

re, 415 

Atkins?).  Ban  well,      .    .    .    .201,203 

Atkinson  v.  Bayntun, 184 

V.  Denln-, 303 

Atkyns  v.  Kinnier,    ....    •  .  222 

Atlee  V.  Backhouse, 186 

Attenborougli    v.  St.   Katharine's 

Dock  Co , 249 

Att.-Gen.  v.  Gaskill, 381 

V.  Great  Eastern  Railway 

Co., 398 

Attwood  V.  Chichester, 351 


PAGB 

Australasia,  Bank  of,  r.  Breillat,    394 
Australian     Royal     Mail     Steam 
Navigation    Company    v.    Mar- 

zetti,      377 

Aveline  v.  Whisson, 6 

Averv  v.  Langford, 223 

AyliJtt"r.  Arclidale, 322 


B. 


Babcock  v.  Lawson,    .  •    ....  249 

Bag-shaw  v.  Bosley, 288 

Baliia,  etc.,  Rail.  Co.,  in  re,  .  .  .  28 
Bailey  v.  Sweeting,  ....  143, 151 
Bainbridge  v.  Firmstone,  .    .  178, 189 

Baines  v.  Ewing, 429 

V.  Swainson, 474 

Baker  v.  Rogers, 283 

V.  Townsend, 234 

V.  Walker, 186 

V.  White, 228 

Bamfield  i'.  Tupper, 530 

Banner  v.  Iterridge, 524 

er  parte,  in  re  Elythe,    .    .186 
Barber  in  re,  Dardier  v.  Chapman,  348 

Barden  v.  Keverberg, 342 

Barker  c.  Allan, 86 

V.  St.  Quintin, 5 

Barkworth  v.  Young, 122 

ex  parte,  re  Harrison,  .  468 

Barley  v.  Walford, 244 

Barnes  v.  Pennell, lb. 

V.  Toye, 315 

Bartlett  v.  N'iner, 18,  251 

V.  WelLs, 324 

Barton  t\  Fitzgerald, 561 

Batard  v.  Hawes, 193,  198 

Bateman  v.  Mid- Wales  Rail.  Co.,  374 
V.  Finder,    .    .  522,  529,  531 

Batson  v.  King, 107 

I'.  Newman, 267 

Battersby  v.  Kirk, 516 

Battley  v.  Faulkner, 514 

V.  Lewis, 460 

Batty  V.  Marriott, 272 

ix 


TABLE   OF   CASES. 


PAGE 

Baumann  v.  James, 88 

Baxter  r.  Brown, 142 

V.  Nnrse,      71 

V.  Earl  of  Portsmouth,  .  358 
Bavlev  v.  Wilkins,  ...  60,  193,  426 
Bayliiie  v.  Butterworth,      60,  193,  425 

Bazelcv  )'.  Forder, 498 

Beal  r."  South  Devon  Kail.  Co.,     .  191 

Beale  v.  Mouls, 4G0 

Beard  v.  Webb, 342 

Beaucharnp  v.  Powley, 191 

Beaumont  ('.  Eeeve,    .    .    .    .203,211 

Beavun  v.  M'Donnell, 361 

Becklbrd  v.  Crutwell, 542 

Beckham  v.  Drake,     .    .    40,  453,  461 

V.  Knight, 459 

Beer  v.  Foakes, 168 

Beeston  r.  Beeston,     .    .  260,  267,  270 
Begbie     v.     Phosphate      Sewage 

Co., 300, 306 

Belford  Union  v.  Pattison,    .    .    .  468 

Belknap's  (Lady)  case, 341 

Bell  V.  iStocker, 333 

Belshaw  v.  Bush, 186 

Belton  V.  Hodges, 324 

Bendix  v.  Wakeman, 345 

Bendry  r.  Price, 291 

Bennett  v.  Brumfitt, 96 

Benson  v.  I'aul, 502 

Bentinck  v.  Connop, 264 

Benwell  v.  Inns,      218 

Besant  v.  Cross, 44 

V.  Wood, 229 

Betts  V.  Kimpton, 329 

Beverley  v.  Lincoln  Gas  Light  Co.,  374 

Beyer  r.  Adams, 270 

Biddlecombe  v.  Bond, 563 

Bidmead  v.  Gale, 264 

BitHn  V.  Bignell, 493 

Bill  V.  Bament, 97 

Birch  V.  J>iverpool,  Earl  of,      .    .  137 

Bird  f.  Boulter, 146,411 

V.  Gammon, 107 

Birkenhead  Railway  Co.  r.Pilcher,  321 

Birkmyr  v.  Darnell, 106 

Bishop  V.  Elliott, 279 

Blackett  v.  R.  E.  Insurance  Co.,  68,  69 

Blagden  r.  Bradbear, 81 

Blair  V.  Bromley, 538 

Blake's  case, 31 

Black  more  v.  Bristol   and  Exeter 

Railway,       190 

Blaxton  ('.  Pye, 261 

Boaler  v.  Mayor, 30 

Bolton  V.  Prentice, 492 

Bond  V.  Bell, 260 

V.  Pittard,      454 

Bonfield  v.  Smith, 458 

Bonnewell  v.  Jenkins, 158 


PAGl 

Bosanquet  v.  Shortridge, 

385,  38C,  388 

Boulton  V.  Jones, 201 

Botcherby  v.  Lancaster,     ....      7 

Bourdin  v.  Greenwood, 521 

Bourne  v.  Gatlift; 542 

Bowes  V.  Foster, 21 

Bowker  v.  Burdekin, 12 

Bowlby  V.  Bell 132,  387 

Bowman  v.  Taylor, 21 

Bowry  v.  Bennett,       21 1 

Boydell  v.  Drummond, 90 

Bracegirdle  v.  Heald, 135 

Bradlaugh  v.  Newdegate,  ....  237 
Bradley  v.  Holdsworth,     ....  142 

Bradshaw  v.  Beard, 495 

Brady  v.  Todd, 414 

Kramali  v.  Roberts, 392 

Brandon  v.  Nesbitt, 367 

V.  Old, 363 

Brashford  v.  Buckingham,    .    .    .  344 

Brett  V.  Beckwith, 459 

Brettel  v.  Williams, 456 

Brewer  v.  Sparrow, 431 

Brice  v.  Bannister, 295 

P.ridges  ?'.  Fisher, 211 

Briggs  V.  Merchant  Traders'  Ship- 
ping Assurance  Association,     .  275 
Britain  v.  Rossiter, 

97,99,100,135,  139 
British  and  American  Telegrapli 

Co.  V.  Colson, 164 

British  Empire  Shipping  Co.  v. 

James, 201 

British  Farmers'   Pure  Linseed 

Cake  Co.,  in  re, 28 

British  Linen  Co.  v.  Drummond,   367 

Broad  t'.  JoUyfie, 216 

Brogden  v.  Marriott, 261 

Brooker  v.  Scott, 313 

Broughton  v.  Manchester  and  Sal- 
ford  Waterworks  Co.,    ....  374 

Brown  v.  Ackroyd, 498 

V.  Byrne, 63 

r.  Ciump 207 

V.  Jodrell, 359,  360 

V.  Langley, 44 

V.  Mayor  of  London,      .    .  259 
V.  Rutherford,  in  re  Ruth- 
erford,   530 

Browning  v.  Morris, 300 

nStallard, 112 

Brydges  v.  Lewis, 31 

Brvson  v.  Whitehead, 224 

Buck  V.  Robson 295 

I5uckley  ex  parte,  in  re  Clarke,      .  464 

Buckmaster  v.  Russell, 527 

Bullock  V.  Dodds, 368 

Bunn  V.  Guy, 173,  217,  222 


TABLE   OF    CASES. 


XI 


PAGE 

Burchell  v.  Clark 49 

Burgess  v.  Wickham, 51 

Burghart  «.  Hall,        314 

Burkinshaw  v.  NicoUs, 28 

Burlinson  y.  Hall,_ 295 

Burmester  v.  Norris, 394 

Burn  V.  Boulton, 533 

Burrowes  v.  Gore, 512 

Burrows,  re,  ex  parte  Taylor,     .    .  320 

Bursill  V.  Tanner, 354 

Bush  V.  Martin. 524 

Butcher  y.  Steuart,      .....  109 

Buttemere  t'.  Hayes, 130 

Buxton  V.  Kust, 151 

Bwlch  y  Plvvmhead  Mining  Co. 

V.  Baynes, 244 

Byrne  v.  Van  Tienhoven,     •    .   .  164 


C. 


Cadaval,  Duke  de,  v.  Collins,   .    .  236 

Calder  v.  Dohell, 441 

Callislier  v.  Bischolfsheim,    .  186,  188 

Calvin's  ease 367 

Campbell  r.  Hooper,      .    .    .360,361 
Capper,  ex  parte,  re  Direct  Bir- 
mingham Kail.  Co., 163 

Carpenter  v.  Buller, 21,  -'3 

Carr  v.  HinchlifF, 437 

t'.  London  and  North  West- 
ern Rail  Co., 28 

Carrington  v.  Roots,   .    .    97, 123, 126 

Carter  v  Boehra, 273 

V.  Lsirter, 22,  23 

Catling  V.  King, Ho 

Caton  V.  Caton, 95 

Catt  V.  Tourle, 217 

Catterall  v.  Hindle,    : 468 

Cave  V.  Hastings 88,  92 

Cawthorn  v.  Cordrey, 135 

Central  Rail.  Co.  of  Venezuela  v. 

Kisch, 244 

Champion  v.  Plunimer, 149 

Channel  v.  Ditchburn, 330 

Chaplin  v.  C  larke, 163 

Chapman  v.  Biggs, 352 

Chappie  V.  Cooper, 315 

Chasvmore  v.  Turner, 525 

Cherry  v.  Heming, 6,  1;>8 

Chesman  v.  Nainby,  ....  216,  21 , 
Christotiersen  v.  Hansen,  ....  453 
Church    0.   Imperial   Gas  Light 

Co., 373,374 

Clarke  v.  Cuckfield  Union,    •   .    .374 

V.  Dickson, 248 

t'.  Powell,     .    .    .    .  •    .    .  46() 

V.  Roystone, 57 

in  re,  ex  parte  Buckley,  .    .  464 


PAQB 

Clay  v.  Yates, 211 

Clayton  v.  Gregson, 65,  7 1 

V.  Lord  Nugent,    ....    49 

Cleave  v.  Jones, 537 

Clenan  v.  Cooke, 81 

Cliflbrd  V.  Burton, 485 

V.  Laton, 494 

Clutterbuck  r.  Coffin, 167 

Coates  V.  Wilson,    ......  313 

Cobb  V.  Becke, 406 

Cockerel  1  v.  Aucompte, 429 

Cockerill  v.  Sparke, 524 

Cocking  t;.  Ward, 98,130 

Cockran  v.  Islam, 406 

Cocks  V.  Nash, 31 

V.  Purday, 366 

Coggs  V.  Bernard, 189 

Colborne  v.  Stockdale, 19 

Cole  V.  North  Western  Bank 

470,  472,  474, 483 

Colebrook  v.  Layton, 29 1 

Coleman  v.  Riches, 428 

Coles  I'.  Bui  man, 200 

V.  Hulme, 563 

V.  Strick 24** 

Collins'  V.  Blantern,'    18,  208,  231,  300 

V.  Locke, 17, 225 

Collinson  v.  Margesson,     ....  529 

Collis  ('.  Stack, 521 

Combe's  case, 406 

Conolan  r.  Leyland, 354 

Cooch  V.  Goodman, 6,  14 

Cook  V,  Field, 274,  275 

V.  Wright, 173, 187 

Cooke  I'.  Clavworth, 364 

V.  Oxley,  .    .  158,  159, 160, 164 

V.  Seelev, 435 

V.  Wilson, 442 

Coombs  V.  Dibble, 272 

Cooper  V.  Smith, 151 

Cope  ('.  Albinson, 156 

V.  Rowlands, 

IS,  19,  251,  252,  253,  255,  466 
Copper  Miners  of  England  (Gov- 
ernor and  Co.  of)  v.  Fox,  .  37S,  379 
Coppock  V.  Bower,      ....    18,  235 

Cork  V.  Baker, 121 

Cornforth  v.  Smithard, 521 

Cornill  v.  Hudson, 515 

Corpe  r.  Overton, 320,  322 

Cory  r.  Cory, 364 

Cottam  V.  Partridge,  ......  537 

Couturier  v.  Hastie, 113 

Coventry  v.  Great  Eastern  Rail. 

Co., 28 

Cowan  V.  Milbourn, L'll 

Cowiei'   Remfry, 161 

Cox  V.  Hickman, 454,  455 

Coxhead  v.  MuUis, .325 


xu 


TABLE   OF   CASES. 


PAGE 

Craiifiirtl  v.  Hunter, 275 

Cripps  V.  Davis,      .    .    .  522,  524,  529 

V.  Hartnoll, 108 

Crasljy  v.  Wadsworth,  97, 123, 124, 12{; 

Cross  r.  E.s;lin, 70 

Ciiddee  r.  Hutter, 500 

Cullei)  r.  r.ntler, 558,500 

Cumininjj;  v.  Hooper,      236 

Cuniiiiins  r.  (  umiuins, S4 

Cunanl  v.  llvde, 250 

Cundell  V.  Dawson,     .    .    18,  251,  252 

Cundy  v.  Lindsay, 157 

Curlewis  ?■.  Earl  of  Mornington,    517 

Curtis  ('.  Williamson, 441 

Cuthbcrt  V.  Cummings,      ....    07 


D. 


Daintree  v.  Hutchinson,    ....  265 
Dalby  v.  India  and  London  Life 

Assurance  Co., 275 

Dalton  V.  Midland  Counties  Rail- 
way, •    •    . 344 

Dancer  r.  Hastings, 23 

Dane  v.  Kirkwall, 359 

D'Arcy  V.  Tamar,  &c.,  Rail.  Co.,  389 
Dardier  r.  Cliapman,  tn  re  Barber,  348 

Dartnall  ?'.  Howard, 191 

Dashwood  ('.  Jermya, 167 

Davey  v.  Shannon, 1 37 

Davidson  r.  AV'ood, 496 

Davies  v.  Hopkins, 406 

V.  London  and  Provincial 

Marine  Ins.  Co., 233 

Davis  V.  Holding, 240 

V.  Mason,  ....  219,220,222 

Davison  v.  Donaldson, 452 

Day  ?'.  Padrone,      344 

Deacon  v.  Gridley,      203 

Dean  and  Cliapter  of  Femes,  case 

of,  .    .  _ 6 

De  Begnis  v.  Armistead,   ....    19 

Delx>nhani  v.  Mellon, 491 

De  Bussdie  r.  Ait 407 

De  Greuehy  v.  Wills,     .    .    .  333,  366 

De  la  Vega  v.  Vianna, 367 

Deiliasse,  ex  parte;  in   re   Mege- 

vand, 455 

De  Mantort  v.  Saunders,    ....  457 

De  Boo  V.  Foster, 324 

Dendy  r.  Henderson,      .    .  .  217 

Derby  (anal  Co.  v.  Wilniot,      .    .       6 

Deslandes  r.  (iresory, 446 

De\aux  r.  Steinkeller,  .  .  .  118,119 
De  Wahl  r.  Braune,  ....  342,  367 
Dickenson  v.  Valpy, 

390/  393,  395,  454,  402 


PAGE 

Diggle  r.  Higgs, 270,  272 

Dilic  V.  Keighley, 320 

Dimes  v.  Grand  Junction  Canal 

Co., 235 

Dingley  r.  Robinson, 330 

Direct  Birmingham  Railway  Co., 

re,  ex  ;x/rte  Capper, 163 

Ditcham  v  Worrall,  ....  325,  326 

Dixon,  ex  /xirte,  in  re  Henlev,    .    .  439 

f.  Holdroyd,     .    .    .".    .    .512 

Dobell  V.  Hutchinson, 88 

Dobson  V.  Collis, 137 

Dodd  V.  Burchall, 49 

Doe  (/.  Allen  v.  Allen, 50 

d.  Bywater  v.  Brandling,  .  .  556 
d.  Christmas  v.  Oliver,      .    .    28 

d.  Gains  v.  Rouse, 50 

d.  Garnons  v.  Knight,  ...  7 
d.  Hiscocks  v.  Hiscocks,  .  50,  539 
d.  Lloyd  V.  Bennett,  ....  7 
d.  Muston  V.  Gladwin,  ...  31 
d.  Richards  v.  Lewis,     ...      7 

Doggett  V.  Catterms, 271 

Dolling  t'.  Evans, 81 

Dolman  v.  Orchard, 460 

Donellan  v.  Reed, 138 

Doorman  v.  Jenkin.s, 191 

Dormer  (Lord)  v.  Knight,    .    .    .  562 
Doughty  V.  Bowman,      .    .    .   .  •  554 

Dowling  V.  Ford 532 

Dowthwaite  v.  Tibbut, 523 

Dresser  r.  Norwood, 438 

Drew  V.  Nunn,    ....  360, 432,  496 

Driver  v.  Burton, 1 99 

Drury  v.  De  Fontaine, 280 

Duignan  v.  \\'alker, 225 

Duke  V.  Andrews,       163 

Duchess  of  Kingston's  case,     .    .    27 

Dunlop  I'.  Iliggins, 164 

Dunston  v.  Imperial  Gas   Light 

Co., 413 

Duppa  V.  Mayo, 125, 127 

Durrant  v.  Ricketts, 351 

Durrell  r.  Evans, 146 

Dutton  V.  Marsh, 401 


E. 

Eastern    Counties    Rail.   Co.    v. 

Hawkes, 398 

Earler.  Peale, 321 

V.  Ho))wood, 237 

Eastland  I'. Burcliell, 494 

Eastwood  V.  Kenyon, 

113,169,  196,  203 

Eaton  V.  Basker, 381 

F^den  v.  Blake, 72 

Edge  V.  Straflbrd, 132 


TABLE   OF   CASES. 


XUl 


PAGE 

Edmunds  v.  Busliell, 410 

Edwards  v.  Baugh, 187 

V.  Towells, 495 

Egerton  v.  Browniow,    .    .    .  241,  242 
V.  Matthews,     .    .    .  148,  150 
Elbinger  Actien   Gesellschaft   v. 

Claye, 445 

Elderton  v.  Emmens,     .        ...  200 

Elliott  V.  Richardson, 241 

Eimore  v.  Kingscote,     ...    81,  149 

Elsee  V.  Gat  ward, 191 

Elves  ('.  Crofts, 217,  223 

Emmerson  J'.  Jleelis, 413 

Emmet  v.  Dewhirst, 48 

England  v.  Marsden, 198 

Esposito  V.  Bowden,   ....  239,  307 

Etherington  v.  Parrott, 486 

Evaus  V.  lirown,      34 

V.  Edmonds, 244 

V.  Jones, 200 

V.  Pratt, 67,  204 

V.  Roberts,    .    .    -123,  125,  127 

Everett  v.  Robertson, 520 

Ewers  V.  Hutton, 495 

Exail  V.  Partridge, 198 


Fairlie  v.  Fenton, 465 

Fallowes  I'.  Taylor,  ....  14,  234 
Falmouth  (Lord)  v.  Thomas,  .  .  1  JO 
Fannin  v.  Anderson,  ....  516,517 
Farebrotlier  v.  Simmons,  .    .  146,  410 

Farley  v.  Briant, 33 

Farrar  i;.  Deliinne, 462 

V.  Hutcliinson, 21 

Faulder  r.  Silk, 357 

Fear  v.  Castle, 333 

Fearnside  c.  Flint,      .    .    38, 478,  509 

Felthouse  c  Bindley, 153 

Fenn  r.  Harrison, 414 

Fennell  v:  Rid'er, 280 

Fenton  v.  Emblers, 135 

v.  Iloliowav, 364 

Feret  r.  Hill,   .    .  ' 211 

Fernley  r.  Branson,        23() 

Fergusson  v.  Norman, 253 

Femes,  Dean  and  Chapter  of,  case 

of, 6 

Ffytche  v.  Bishop  of  London,   .    .  287 

Field  '.  Lelean, 68 

Findon  r.  Parker, 237 

Fish  V.  Kem|)ton, 438 

Fisher  )'.  Fallows, 193 

V.  Marsh, 452,  453 

Fishmongers'  Co.  v.  Robertson,    .  373 

Fitch  V.  Sutton, 21 

Fitzgerald  v.  Fitzgerald,    ....  329 


PAGE 

Fitzgerald  v.  Dressier, 109 

Fitzmaurice  v.  Bagley, 81 

Fivaz  V.  Nicholls,\    .        .    .232,306 

Fleet  I'.  Murton, 4-:>2,  465 

V.  Perrins, 348 

Flemyng  v.  Hector, 429 

Fletcher  v.  Fletcher, 7 

V.  Lord  Sondes,  288,  289,  290 
ex  parte,  re  Saloon  Steam 

Packet  Co., .158 

Flight  V.  Reed, 203 

V.  Salter, 291 

P'lindt  V.  Waters, 3o7 

Florv  V.  Denny, 3R 

Flower  v.  Sadler, 232 

Ford  V.  Yates, 45 

Fordham  v.  Wallis, 530 

Fores  v.  Johnes, 209 

Forster  v.  Rowland, 153 

V.  Taylor, 254 

Forsyth  r.  Bristowe, 512 

Forth  V.  Stanton,    .    .    .  103,  100,  112 
Foster  v.  Bates, 431 

V.  Jolly, 44 

Fox  V.  Bishop  of  Cliester,     .    .    .  285 
V.  Clifton,     ....  386,  454,  455 

Francis  v.  Hawkesley, 527 

Franks, -cr  pa 'Z*",      341 

Fraser  v.  Pendlebury,    ...    23,  304 

Free  I'.  Hawkins, 44 

Freeman  v.  Bosher, 431 

V.  Cooke,      27 

Fricker  i>.  Tomlinson, 97 

Froset  v.  Walsh 12 

Fuentes  v.  .Montis,  .  474,  475,  479,  483 
Furness  v.  Meek, 10 


G. 


Gale  V.  Reed 217 

Gardner  v.  M'Mahon, 529 

Garforth  v.  Bradley, 347 

Gaskell  r.  King,      20 

Gaters  v.  Madeley,     ....  331,  345 

Geary  v.  Physic, 96 

(ieneral   Finance,  Mortgage,  and 
Discount  Co.   v.  Liberator  Per- 
manent Benefit  Building  Soc ,      22 
George  v.  Clagett,        ....  430,  439 

Gerhard  v.  Hates, 244 

German  Milling  Co.,  in  re,    .    .    .  395 

Gibbons  v.  Rule, 4()6 

Gibbs  I'.  Guild, 539 

V.  Harding, 229 

Gibson  v.  East  India  Co.,  ....  377 

V.  Holland, 88 

V.  V.  inter, 440 

Girardy  v.  Richardson, 211 


XIV 


TABLE   OF   CASES. 


Giraud  v.  Richmond, 
GladwoU  V.  Steggall, 
(rlaliolm  I'.  Hays,    • 
Glover  v.  llackett, 
Goate  t'.  Goate,    .    . 
(loddard's  case,    .    . 
Goddard  v.  Ingram, 
Godsall  V.  Boldero, 
Godwin  v.  Cully,     . 
V.  Francis, 
Goldham  v.  Edwards, 
Goldshede  v.  Swan, 
Goodall  V.  Lowndes, 
Goodburn  v.  Marley, 
Good  V.  Elliott,  . 
(Joode  V.  Harrison, 
Goodman  v.  Chase, 
Goodman  v.  Griffiths, 
Goodriglit  v.  Strapham, 
Goora  V.  Aflalo,   .    .    . 
Gore  V.  Gibson,   .    .    . 
Goss  V.  Lord  Nugent, 
Grceme  v.  Wroughton, 
Graham  v.  Fretwell,  . 
V.  Graham,  . 
V.  Musson,    . 
Granger  v.  Collins, 
Grant  v.  Grant,   .    .    . 
V.  Norway,    .    . 
V.  Maddox,   .    . 
Graves  v.  Key,     .    .    . 
V.  Legg,    ... 
Greaves  v.  Ashlin, 
Green  v.  Cresswell,     . 
V.  Humphreys, 
(,'.  I'rice,    .    .    . 
Greene  r.  (  optree,  .    . 
Gregory  v.  I*  raser,  .    . 
Grey  i\  Pearson,     .    . 
Grizcwood  v.  Hlane,   . 
(irifllth  ('.  Young,   .    . 
(irindell  v.  (xodmond, 
(-jrissell  v.  Robinson,  . 
?'   liristowe,  . 
Gudgen  v   Hesset,    .    . 
Gnnmakers'  Co  v.  Fell 
Gunn,  er  parte,  re  Universal 

iiig  Corpora,  ion, 
Guyard  v.  iSutton, 


4G,  13  > 
189,  190 
660 

1,0 

527 
6 
530 
275 
521 
96 
283 
542 
233 
261 
266 
324 
109,112 
81, 149 
.  .  6 
.  .466 
.  .  364 
47,151 
.  .  235 
146,412 
.  .  11 
146,412 
206,  207 
50,  53 
.  .  428 
67,5-12 
.  .  21 
.  .  66 
.  .  44 
108,112 
.  .  524 
.  .  180 
441,446 
.  .  3(i3 
.  .  561 
.  .  267 
.  .  98 
.  .  496 
.  .  198 
.  .  60 
.  .  12 
.  .  214 


Bank- 


158 
345 


H. 

Hall  V.  Cazenove, ,    .    25 

V  Mavor  of  Swansea,   .    .    .  373 

V.  Potter, 230 

V.  Smith,      464 

Hallen  v.  Kiinder, 128 

Hamilton  r.  Mills, 347 

Hamnierfeley  v.  Baron  de  Biel,    88,  122 


Hampden  v.  Walsh,    .    .  267,  269.  270 

Hancocks  v.  Lablache, 3oi 

Hands  v.  Slaney, 313 

Hardie  v.  Grant, 495 

Hardman  v.  Booth, 157 

Hargreaves  v.  Parsons, 114 

Ilarman  v.  Reeve, 145, 150 

Harms  v.  Parsons, 223 

Harnor  v.  Groves, 45 

Harrington  v.  Du  Chatel,      .    .    .  235 
V.    Victoria    Graving 

Dock  Co., .  209,212 

Harris's   Case,  re  Imperial   Land 

Co.  of  Marseilles, 164 

Harris  v.  Carter, 167 

?;.  Goodwyn,    ......    31 

Harris  v.  Watson, 167, 173 

Harrison  z'.  Cage, 121 

V.  Cotgreave, 321 

V.  Fane, 310,312 

V.  Jackson,  .    .    .    .    37, 412 

re,  ex  parte  Barkworth,  .  468 

Hart  V.  Frontino,  &c.,  Co.,    ...    28 

V.  Prendergast,  .    .  522  523,  528 

V.  Stephens, 329,  346 

Hartley  v.  Ponsonby,      .  167,  173, 174 

Harvey  v.  Grabham,      151 

V.  Kay, 388 

Hasleham  v.  Ycung, 456 

Haslock  V.  Ferguson,     .    .    :    .    .119 

Hawes  v.  Armstrong, 80 

Hawken  v.  Bourne, 31^5 

Hawker  v.  Halliwell, 298 

Hawkins  v.  Gathercole,     ....  291 

Hawtayn  v.  Bourne, 455 

Hayton  v.  Irwin, 69 

Hay  ward  v.  Young, 222 

Heiild  V.  Kenworthy,     .441,  44C,  450 

Heane  v   Rogers, 26 

Heath  v.  Crealock, 22 

V.  Sanson, 460 

Heather  v.  Webb, 204 

Iledley  v.  IJainbridge, 463 

Helps  V.  Clayton, 319 

Henderson    v.    Australian    Roy«.i 
Mail  Steam  Navigation  Co.,     •  376 

Hewitt  V.  Isham, 35 

Hewlins  I'.  Shippam, lb. 

Hey  I  ing  t'.  Hastings,  .  .  5-25',  526 
IleVworth  ^^  Knight,  .  .  .  16'/,  424 
Hibblewhiter.  M'Morine,5,6,3b/,  388 

Hickman  v.  Cox, 454 

Hicks  V.  Gregory, 203 

Higgons?'.  Burton, 157 

Iligginson  v.  Simpson, 267 

Ililliard,  in  re, 97 

Hill  V.  Gray, .  244 

Hill   V-    Manchester  and  Saiford 
Waterworks, 21 


TABLE   OF   CASES. 


XV 


PAGE 

lUUs  V.  Mitson 240 

Hilton  V.  Eckersley, 228 

V.  Woods 237 

Hinde  v.  Whitehouse, 460 

Hindley  v.  Marquis  of  Westmeath, 

18,  228 
Hitchcock  V.  Coker,   .    .  ISO,  221,  227 

Hitchin  V.  Groom, 542 

Hoadly  v.  M'Laine, 149 

Hoare  v.  Dawes, 454 

V.  Graliam, 44 

Hodges  V.  Hodges, 492 

Hodgkinson  v.  Fletcher,    ....  493 

Hodgson  V.  Anderson 112 

Hodson  V.  Observer  Life  Assur- 
ance Societv, 276 

Hodson  V.  Tefrill, 265 

Hogg  r.  Snaith, 44 

Holcroft  V.  Hoggins, 459 

Holding  t'.  Elliott, 74 

V.  Piggott, 58 

Holford  V.  Parker, 11 

Holmes  v.  Bell, 30 

V.  Blogg, 320 

V.  Higgins, 385 

V.  Mackrell, 521 

V.  Smith, lb. 

V.  Williamson, 193 

Holt  V.  Ward, 327 

Homer  v.  Ashford, 214 

Hood  V.  Lord  Barrington,     ...    84 

Hopkins  v.  Logan, 206 

V.  Prescott, 235 

Horner  i\  Graves,  .    .    .    17,216,218 
Horn  V.  Ivy,    .    .    .    .  •    ....  373 

Horsey  i'.  Graham, 129 

Horton  V.  Riley, 304 

Hotson  V.  Browne, 45 

Hough  V.  Manzanos, 453 

Houliston  r.  Smyth, 492 

Household  Fire  Insurance  Co.  v. 

Grant, 164 

How  V-  Synge, 20 

Howard  v.  Oakes, 331 

V.  Sheward, 428 

Howbeach  Coal  Co.  v.  Teague,     .  389 

Howcutt  V.  Bonser, 511 

Howdon  V.  Haigh, 20 

Howson  V.  Hancock, 300 

Hubbersty  v.  Ward, 428 

Hnber  r.  Steiner,    .        366 

Hubert  v.  Treherne 95 

Hudson  V.  Clementson, 65 

Hughes  V.  Paramore, 526 

Hulse  V.  Hulse, 197 

Humble  V.  Mitchell 142,  387 

Hnnifrey  r.  Dale, 465,  466 

Humphreys  v.  Green, 131 

V.  Jones, 528 


PAGE 

Humphries  v.  Carvalho,    .    .    .    .159 
V.  Smith,     .    .    •  .    .  240 

Hunt  V.  Bate, 195 

V.  De  Blaquiere,    .    .    .  487,  4i)5 

V.  Hort, 49 

V.  Wimbledon  Local  Board,  380 

Hunter  v.  Gibbons, 538 

Hunting  v.  Sheldrake,   ....        33 

Hurst  I'.  Parker, 522 

Hussey  v.  Crickett,     ..••..  266 

Hutcheson  v.  Eaton, 465 

Hutchinson  v.  Tatham,      .    .  452,  465 
Hutchison  v.  Bowker,    .    71,  147, 154 

Hutiey  r.  liutley, 238 

Hutton  y.  Bullock, 445 

V.  Parker, 17,  226 

V.  Warren, 56 

Hyde  v.  Johnson, 406,  529 


Imperial  Gas  Company  t.  Lon- 
don Gas  Company,     .    .        .    .  538 
Imperial  Land  (Jo.  of  Marseilles, 

?•«,  Harris's  case, 164 

Imperial  Land  Co.  of  Marseilles, 

re,  Wall's  case, lb. 

Ingledew  v.  Douglas, 321 

Inglis  V.  Haigh, 537 

Inman  r.  Stamp, 128,134 

Irvine  v.  Watson, 452 

Isberg  V.  Bowden, 436,  439 

J. 

Jackson  v.  Cobbin, 207 

V.  Lowe, 86, 147 

V.  Woolley, 530 

Jacques  v.  Golightly, 301 

V.  Withy, lb. 

Jakeman  r.  Cook, 201 

Jarvis  r.  Wilkins, 80 

Jeakes  v.  White, 130 

Jee  V.  Thurlow, 229 

Jeffery  v.  Walton, 73,  74 

Jeffreys  v.  Gurr, 193 

Jefferson  v.  Morton, 33 

Jelliott  V.  Broad, 216 

Jenkins  v.  Reynolds, 77 

Jenkyns  v.  Usborne,  ....  474,  480 

Jenner  v.  Morris, 496 

Jennings  v.  Brown, 203 

V.  Hammond, 293 

V.  Throgmorton,     .    .    .211 

Johnes  v.  Lawrence, 286 

Johnson  v.  Baker, •    .      9 

V.  Credit  Lyonnais  Co., 

475,  477,  479,  4S0 


XVI 


TABLE    OF    CASES. 


PAGE 

Johnson  v.  Dodgson, 95 

V.  Luciis, 344 

V.  Raylton, 66 

V.  iSuiiiner, 493 

V.  R.  M.  Steam  Packet 

Company, 198,  236 

Johnston  v.  Usborne, 66 

Jolitte  V.  Baker, 246,  247 

Jolly  V.  Arbutlinot, 23 

V.  Kees, 486,  491, 493 

Jones,  ex  parte,  in  re  Jones,  .   .    .  324 

V.  Cuthber:son, 348 

V.  Flint, 125,  127 

V.  Bees, 228 

V.  Littleaale, 63,  70 

V.  Kicholson 558 

V.  Orcluird, 199 

V.  Randall, 266 

V.  Victoria  Graving  Dock 

Co, 97 

V.  Waite, 18,  229 

fordan  v.  Norton,    .  147, 153, 158,  417 
Jortin  V.  South  Eastern  Rail.  Co.,  512 


K. 


Kaye  v.  Button, 203 

Keates  v.  Lord  Cadogan,  ....  244 

Keir  v.  Leeman, 233,  234 

Kelly  ?'.  Webster, 130 

Kemble  v.  Atkins, 465,  466 

Kensington  v  Inglis, 239 

Kibble,  er  parte,  in  re  Onslow,  .    .  152 
King  V.  Inhabitants  of  Gravesend,  252 

V.  Iloare, 519 

V.  Lucas, 352 

Kingsford  v.  Merry, 474 

Kirk  V.  Bell, 385 

Kirkhara  r.  Martyr, 113 

Knight  r.  Barber, 142 

V.  Bowyer, 238 

Know! man  v.  Bluett, 136 

Knox  r.  Crye, 537 

Kymer  v.  Suwercropp,  .    .    .  441,  447 


Lafond  v.  Raddock, 615 

Lainson  ?'.  Tremere, 22 

Lake  v.  Duke  of  Argyll,  ....  462 
Lakeman  v.  Mountstephen,  .  .  .111 
Lampleigh  v.  Brathwaite,     .    .    .196 

Lane  v.  Bennett, 516 

V.  Ironmonger,  ....  484,  489 
Lang  V.  Gale, 541 


PAOl 

Lant  V.  Morris, 550 

Lavery  ?'.  Tnrley, 98 

Law  J).  Wilkin, 200 

Laycock  v.  Pickles, 131 

Laythoarpr.  Bryant,     .    .96,97,143 

Leaper  v.  Tatton, 523 

Leather  Cloth  Co.  v.  Lorsont,  223,  224 

Lee  V.  Gaskell, 128,  142 

V.  Griffin, 145 

V.  Jones, 246 

V.  Lancashire  and  Yorkshire 

Rail.  Co 21 

V.  M  uggeridge,    .    .    .    .169,  203 

V.  Wilmot, 525 

Leeds  Hanking  Co.,  re, 156 

Mallorie's  case, 158 

Leidman  r.  Schultz, 65 

Leighton  v.  Wales,     ......  180 

l.ennard  D.  Robinson, 446 

Leroux  v.  Brown,   .    97, 131, 135,  366 

Lester  r.  Fox  croft, 101 

Le  Veux  v.  Berkeley, 517 

Levy  V.  Raker, 360 

V.  Pyne,      463 

V.  Yates, 19 

Lewis  V.  Brass, 158 

V.  Kensington,  Lord,  ...    95 

V.  Lee, 340 

r.  Marshall, 69,  71 

V.  Read, 431 

Ley  V.  Peter, 406 

Lickbarrow  v.  Ma.son,    .    .    .  481,  482 
Lindsay  r.  Cundy,  .    .    .  158, 157,  248 

Lindus  v.  Melrose,  .        401 

V.  Bradwell,    ......  409 

Linnegar  v.  Hodd,      200 

Lister,  in  re,  ex  parte  Pyke,  .    .    .  270 
Liverpool,     Corporation     of,     v. 

Wright, 236 

Llewellyn  v.  Llewellyn,     .    .  187, 188 

Lloyd  V.  Guibert,    .  " 427 

Lobb  V  Stanley, 95 

Lockett  r.  Nicklin, 73 

London,  Bishop  of,  v.  Ffytche,     .  289 
London  and  North  Western  Rail. 

Co.v  M 'Michael,    ._ 321 

London  Dock  Co.  v.  Sinnott,    .    .379 

Long?>.  Millar, 88,92 

Lotigridtie  r.  Dorvill,     .....  186 

Lord  V.  Hall, 407,  409 

Lovell  V.  Newton,  .   .    .  338,  348,  354 

Lowe  V.  Peers, 228 

Lozano  v.  Janson, 558 

Lubbock  V.  Potts, 300 

Lucena  v.  Crawfurd, 27«') 

Ludlow  (Mavor  of)  v.  Charlton, 

370,  372 

Lyde  ti  Barnard, 120 

Lynall  v.  Longbotham,     ....  265 


TABLE   OF    CASES. 


XVll 


M. 

PAGE 

Maber  v.  Miiber, 533 

McCJance  v.  London  and  N.  West- 
ern Rail., 25 

^rcL'onil)ie  c.  Davies, 472 

Macdonald  r.  Longbottom,  54 

IMHieorge  i:  Kifan,      ....  484,  485 

M'Intyre  c.  Belcher, 543 

M'lver  r.  Ricliardson, 156 

M'Kinnell  v.  Robinson,  18,  19,261,300 

M'Maruiri  ('.  Bark, 167 

[M'Neilage  r.  llolloway,     ....  331 

M'Xeili  V.  Reid 456 

]\Liddick  I'.  Marshall, 424 

^Liddison  v.  Alderson, 

97,  101,  131,  141 

iMagee  v.  Atkinson, 63,  70 

Mahony  v.  Kekule, 445 

^lainwaring  v.  Leslie, 495 

Mai  Ian  v.  Mav, 

17,  65,215,221,222,542 

Mallett  V.  Bateman, 109 

Mallorie's  case,  re  Leeds  Banking 

Co., 158 

Mai  pas  V.  London  and  S.  W.  Rail. 

Co 74 

Manbv  v.  Scott, 490,  491 

Marlow  v.  Pitfield, 321 

[Marsh  v.  Hutchinson, 341 

Marshall  v.  Berridge, 81 

V.  Green,     ....  127,  143 
V.  Lynn,  ...    42,    47,  151 

V.  Rutton,        34' I 

Martin  v.  Hewson, 270 

^lartiiii  v.  Coles, 471 

Maspons  v.  Mildred, 43'J 

Masters,  re, 237 

Mathew  v.  Blackmore, 30 

Matthews  v.  Baxter, 365 

May  V.  Taylor, 440 

Mayfield  r.  Robinf5on, 35 

Mazzinghi  v.  Stephenson,      ...     19 

Meakin  v.  Morris, 322 

Mechelen  v-  Wallace, 128 

Megginson  r.  Harper, 440 

Meredith  v.  Footner, 485 

Mews  f.  Carr, 146,  410,  412 

Meyer  v.  Haworth, 340 

Meyerhof  v.  Froehlich,     ....  521 

Meynell  v.  Surtees, 163 

Michelmore  v.  Mndge, 347 

Mildred  i\  Maspons, 439 

Milford  V.  Hughes, 466 

Miller  c.  Titherington,  .    .    .    .  68,  69 

Millership  v.  Brookes, 10 

Mills  I'.  Borthwick, 519 

Milner  v.  Milnes,        .    .  328,  330,  347 
Mitchell  V.  Reynolds, 

17,  214.  215,  219,  243 
B 


Mitchell's  Claim,  re  River  Steamer 

Co., 527,  528 

Mitchinson  v.  Hewson, 328 

Mizen  v.  Pick,      493 

Moens  v.  Hevworth 248 

Mollett  V.  Robinson,  .  .  63,  424,  427 
Molton  V.  Camroux,    ....  360,  361 

Monk  V.  Whittenbury, 474 

Monkman  r.  Shepherdson,    .    .    .  203 
Montacute     •  Countess;    v.    Max- 
well,  122 

Montague  v.  Benedict, 488 

Monypenny  i:  Monypenny,  .  543,  556 
Moodie  r.  Uannister,  ...  .512 
Moon  v.  Whitney  Union,  .  .  198,407 
Moore  v.  Campbell,     .    .    70, 151,  162 

V.  Ramsden, 291 

Moorsom  v.  Bell, 460 

Morgan  r.  Corder, 442 

V.  Rowlands, 532 

Morley  v.  Morlev, 512 

Morrell  v.  Frith", 522,  524 

Morris  r.  Martin, 495 

Mortimer  v.  Wright,  ....  -200 
Morton  v.  Burn, 184 

V.  Cope  land, 406 

V.  Woods, 23 

Moselv  V.  Hanford, 44 

Moss  V.  Tribe, 361 

Mostyn  V.  Fabrigas, 367 

Mouflet  r.  Cole, " 225 

Mountstephen  i\  Lakeman,  .  110,  111 

Mouys  V.  Leake,      291 

Moyce  v.  Newington,     .    .    .  248,249 

Mozley  r.  Tinkler, 156 

Mumford  v.  Gething,      ,    55, 175,  223 

Muncev  i'.  Dennis, 59 

Murray  v.  Earl  of  Stair,    ....      9 

V.  Reeves, 240 

Musgrave  v.  Drake, 464 

Myers  v.  Sari, 67,    69,  542 


N. 

Nash  V  Armstrong, 31 

r.  Hodgson, 533 

National     Provincial     Bank     v. 

Harle, 295 

Naylor  v.  Palmer, 558 

Neilson  v.  Harford,     .    .    .    .    71, 540 

V.  .James, 60,  67,  70 

Nerot  V.  \Vallace, 240 

Nesbitt  V.  Lushington, 560 

Newell  V.  Radford,      ....  149,  150 

Newland  v.  Watkins, 291 

Newman  v.  Newman, 288 

Newton  v.  ]\|arsden, 228 


xvm 


TABLE   OF   CASES. 


PAGE 

New    Zealand     and     Australian 

Land  Co.  v.  Watson, 439 

V.  Ruston,       ....    lb. 

Nicholls  V.  Diamond, 404 

t'.  iStretton,  .    .    .    .    iJO,  218 
Nicholson  r.  Bradford  Union,      .  374 
Kicliolson  V.  Drury  Buildings  Es- 
tate Co.,    .    .  348 

V.  Ricketts, 170 

Koble  V.  Ward, 151 

Norfolk   Railway    Co.   v.    M'Na- 

mara, 30 

Norris  v.  Irish  Land  Co.,  ....  601 

Northcote  v-  Doughty, 320 

Norton  v.  Powell, 280 

Nunn  i'.  Fabian, 138 

Nurse  v.  Craig, 493 

Nye  V.  Mosely, 17 


o. 


Oakes  v.  Turquand, 248 

Oliver,  ex  parte,  re  Hodgson,     .    .    19 

V.  VVoodroffe, 321 

Onslow,  in  re,  ex  parte  Kibble,  .    .152 
Oriental     Inland    bteam    Co.    i'. 

Briggs,  156 

Ornie  t'.  Galloway, 108 

Orrell  v.  Coppock, 107 

Ottaway  r.  Hamilton, 498 

Owen  V.  Thomas, 88 

V.  Van  Uster, 404 


P. 


Padstow  Total  Loss  and  Collision 
Assurance  Association,  in  re,    .  293 

Paget  i\  Foley, 39 

Paice  i\  Walker, 453 

Paine  v.  .Strand  Union,      .    •    .    .  37 1 

Pardo  I'.  Bingham, 515 

Pargeter  v.  Ilarris, 23 

Parker  v.  Ibbetson, 61 

V.  Lechraere, 348 

V.  Leigh, 184 

V.  Staniland, 131 

Parkin  v.  Carruthers, 460 

Parkinson  v.  Collier, 03 

Parol  ti.  Moor, 373 

Parsons  v.  Alexander,    .    .    .  269,  271 

V.  Thompson, 235 

Parton  v.  Crofts, 148 

Partridge  v.  Whiston, 288 

Pasley  v.  Freeman,     ....  246,  247 


PAGS 

Paterson  v.  Gandasequi,  441,  442,  413 

V.  Powell, 274 

V,  Tash, 471 

Pawle  V.  Gunn, 193, 199 

Paxton  V.  Popham, 18 

Payler  v.  Homersham, 558 

Peacock  v.  Peacock, 459 

Pearce  v.  Brooks, 212 

Peate  v.  Dicken, 279 

Peirce  i'.  Corf, 91, 147 

Pellecat  v.  Angell, 258 

Pemberton  v.  Vaughan,     ....  222 

Penrose  v.  Martin, 401 

Perry  v.  Fitzhowe, 35 

V.  Hall,  468 

V.  Jackson, 517 

Peruvian    Railways    Company   v. 
Thames  and  Mersey  Insurance 

Company, 402 

Peter  v.  Compton, 134 

Peters  v.  Fleming, 310 

Phillimore  v.  Barry, 147 

Phillips  V.  im  Thurm, 28 

Philliskirk  v.  Pluckwell,  ....  344 

Philpott  V.  Wallet, 121 

Pickard  v.  Sears, 26,    27 

Pickering  v.  Busk, 422,  470 

Piggott  V.  Stratton,    ....  652,  553 

Pike  V.  F'itzgibbon, 352 

Pilbrow  V.  Pilbrow's  Atmospheric 

Rail.  Co.,- 21,    22 

Pilkington  v.  Scott,    ....  226,  227 

Pinchon's  case, 34 

Pitt  V.  Purssord, 1 93 

V.  Smith, 304 

Pittam  V.  Foster, 330 

Poplett  V.  Stockdale, 210 

Potter  V.  Duffield, 84,    85 

Potts  V.  Bell, 239 

Pouiter  V.  Killingbeck,      ....  131 
Pourtales  Gorgier  v.  Morris,    .    .  195 

Powell  V.  Horton, 66 

Power  V.  Butcher, 467 

Pownall  V.  Ferrand, 192 

Prestwick  r.  Marshall, 409 

Price  V.  Easton, 175 

V.  Green, 20,  227 

V.  Moulton, 29 

Priestly  v.  Fernie, 440 

Prince  v.  Brunatte, 409 

Prior  V.  Hembrow', •  193 

Probart  n.  Knouth, 321 

Proctor  V.  Sargent,     .    .  180,  218.  222 

Prole  V.  W' iggins, 240 

Prugnell  v.  Grosse, 216 

Pul  brook  V.  Lawes, 98 

Pust  V.  Dowie, 601 

Pyke,  ex  parte,  in  re  Lister,   .    .    .  270 
Pym  V.  Campbell, 12 


TABLE   OF   CASES. 


XIX 


Q. 

PAGE 

Queen  v.  Hughes, 3 

V.  Nevill, 279 

V.  Stamford  (Mayor  of)  .  370 
V.  Stoke-upon-Trent,  .    56,    60 

Quincey  v.  Sharpe,         525 


E. 


Rackharn  v.  Marriott, 526 

Ramazotti  v.  Bowring, 436 

Ramsey  v.  Macdonald, o68 

Randall  v.  Morgan, 122 

Randle  v  Gould, _.  229 

Rann  v.  Hughes, 35,  103 

Rawlyns  c.  Vandyke, 492 

Read  v.  Anderson, 260,  27 1 

V.  Legard,  ...  .  362,  493 

V.  Roval  Exchange  Assurance 

Co.,    .    .' 275 

Reader  v.  Kingham, 114 

Reed  v.  Moore, 495 

Reeves  v.  Capper, 36 

R.  V.  Bigg, 374 

V.  Chawton, .'^41 

V.  Cox, 282 

V.  Huglies,       3 

V.  Inhab.  of  Gravesend,   .    .    .  252 

V.  Lord 322 

V.  Nevill, 279 

V.  Oldland 201 

V.  Silvester, 278 

V.  Stamford  (Mayor  of ),  .    .    .  370 
V.  Stoke-upon-Trent,     .    .    56,    60 

V.  Whitnash,       278 

V.  Wilson, 306 

V.  Younger, 282 

Reid  I'.  Hoskins,     .  • 239 

V.  Teakle, 484 

Reuss  V.  Picksley, 96,    97 

Reuter  v.  Electric  Telegraph  Co.,  377 

Rhodes  v.  Sniethurst, 517 

Richards  v   Ricliards,     .    .    .  344,  345 
Richardson  v.  Du  Bois,     .    .  493,  494 
Riche  V.  Ashbury   Railway  Car- 
riage and  Iron  Co., 398 

Ricketts  v.  Bennett, 394 

Ridd  V.  Moggridge, 531 

Ridgwav  V.  Wharton, 88 

Ridley  r.  Plymouth  Raking  Co.,    389 
Right  dJeffereys  i'.Bucknell,  22,  547 

Riley  v.  Packington, 424 

Risbourg  v.  Bruckner 441 

Rishton  V.  Whatmore, 91 

Ritcliie  V.  Smith,    ...    18,  240,  253 
River   Steamer    Co.,    in   re,    Mit- 
chell's Claim, 527,  528 

Roberts  v.  Barker, 59 


PAGR 

Robertson  v.  Jackson,    .    .    .    64, 542 

V.  Money, 65 

Robinson  v.  Gleadow, 431 

V.  Mollett,      .    63,  424,  427 
V.  Ommaney,    .    .     20,  228 

Robson  r.  Drummond, 461 

Roddam  v.  Morlev, 512 

Rodwell  ('.  Phillips, 126 

Roe  d.  Wilkinson  v.  Tranmarr,  .  548 
Rogers,  ex  parte,  in  re  Rogers,  .    .  268 

V.  Pavne, 31 

Roscorla  v.  Thomas,   ....  206,  207 

Rosewarne  v.  Billing, 269 

Ross  V.  Estates  Investment  Co.,    .  244 

Rosseter  v.  Calilraann, 292 

Rossiter  r.  Miller, 85, 158 

Rourke  v.  Short, 267,  268 

Rousillon  V.  Rousillon, 225 

Routledge  v.  Grant,   ....  159,  164 

Rowbotham  v.  Wilson, 23 

Ruckmaboye  v.  Mottichund,    .    .  366 

Rumsey  v.  George, 329,  330 

Rusby  V.  Scarlett, 419 

Russell  V.  Thornton 156 

Rutherford,  in  re,  Brown  v.  Ruth- 
erford,   530 

Rutland's  (Countess  of)  case,    .    .    42 
Ryder  v.  Wombwell,  .    .  310,  312,  314 


S. 


Sainsbury  r.  Matthews, 125 

Sainter  v.  Ferguson,  ....  222,  226 

Sale  V.  Lambert,       84 

Saloon  Steam  Packet  Co.,  re  ex 

parte  Fletcher, 15S 

Saltmarshe  v.  Ilewett, 291 

Sanders  v.  Coward,     .    .    .   •    .    .  508 

V.  Rodway, 229 

Sandiman  v.  Breach, 279 

Sari  V.  Bourdillon, 150 

Saunders  v.  ^^'akefie!d, 77 

Saunderson  v.  .Jackson,      ....    94 

V.  Piper, 49 

Savage  v.  Madder, 271 

Scarfe  v.  Morgan, 280,  282 

Scarpellini  v.  Atcheson,    ....  347 

Schneider  v.  Norris, 94,  95 

Scholev  V.  Walton, 532 

Scorell  V.  Boxall, 126 

Scotson  V.  Pegg, 173 

Scott  V.  Eastern   Counties   Rail. 

Co. ^ 145 

Seagram  v.  Knight, 519 

V.  Tuck, 3 

Seaton  v.  Benedict, 488 

Seignior  x:  Wolmer, 434 

Semenza  o,  Brinsley, 438 


XX 


TABLE   OF   CASES. 


PAGE 

Senior  v.  Arniitase,       o(> 

Sentance  v.  Poole,  .    • 3l)4 

Sliac'kell  ('.  Rosier,      ....    2(i,  2o() 

Shadwell  v.  .Shadwell, 170 

Shardlow  v.  Ojtterell,    .....    83 

Sliarin<>ton  v.  iStrotton, 14 

Sliarnian  v.  Rraiidt,    ....  146,  410 

Sharp  (I.  Gibbs, 80 

Shaw  r.  Benson, 292 

V.  Port  Pliilip  and  Colonial 
Gold  iM  ining  Co.,      ...    28 

V.  Pritchard, 290 

V.  Simmons, 292 

Shelley  v.  Wright, 21 

Sherrington  v.  Yates, 330 

Shilling  V.  Accidental  Death  As- 
surance Co., 276 

Shillito  V.  Theed, 2(;r, 

Shillibeer  t'.  Glyn,      .    .    .    .172,189 

Shipley  v.  Kymer, 472 

Shrewsbury  v.  Blount, 248 

Shubrick  ?'.  Sa  mond, 13 

Sidwell  V.  Mason, 529 

Sigel  V.  Jebl), 261 

Siggers  V.  Evans, 36 

Simm  V.   Anglo  American   Tele- 
graph ('o., 28 

Simons  v.  Johnson, 5o8 

Simpson  v.  liloss, 306 

V.  Lamb, 238 

v.  Margitson,   .    .    .    66, 541 
V.  Nichols,    ....  280,  2.S1 

Sims  V.  Bond,       436 

Sievewright  v.  Archibald,     .  147,  466 

Skeet  V.  Lindsay, 525 

Skull  V.  Glenister, 540 

Sloane  r.  Packman, 291 

Smart  ?•.  Harding, 129 

Smcthurst  r.  Mitchell,  .    .    .    .   •  441 

Smith  r.  Algar, 185 

V  Anderson, 293 

V.  Birmingham  Gas  Light 

Co., 373 

V.  Bromley, 301 

V.  Cart  Wright, 27  iJ 

V.  Chadwick, 248 

V.  Clegg, 198 

V.  Cufie, 303 

V.  Hill,      517 

V.  Hull  Glass  Co.,    ...    .  390 

V.  Johnson, 401 

V.  Lindo,  ....    60,  253,  466 

V.  Mawhood, 2^6 

V.  Neale, 96, 139 

t>.  Sheli)orne, 284 

V.  f^mith, 178 

V.  Sorbv 21-'' 

V.  Surinan,    .    .    .  126,127,147 
V.  Thompson, 540 


PAOB 

Smith  V.  Thome 526 

V.  Wheatcroft,     .        ...  158 

V.  White, 211 

V.  Wilson,    ...      65,  71,  542 

Smyth  ?'.  Ander.son, 448 

Sue  ling  r.  Lord  Iluntingfield,  13H,  139 
Souch  V.  Strawbridge,     .    .    .  136, 138 
South  of  Ireland  Colliery  Co.  v. 
\^  addle,    ........  377,  399 

South  Wales  Atlantic  Steamship 

(.-'o.,  in  re,      293 

Spartali  v.  Benecke, 68 

Spencer's  case, 32 

Spong  V.  Wright, 524 

Sprye  v.  Porter, 238 

Spurr  v.  Cass, 435 

Staines  v.  Wainwright,   .    .    .19,  240 

Standen  v.  Christmas, 31 

Stanley  r.  Jones, 237 

Stead  V.  Dawber, 47,  151 

Steiglitz  V.  Eeginton, 37 

Stephens  v.  De  Medina,     ...  388 

Stevens  v.  Biller, 470 

Stevenson  v.  McClean,  .    .    .  164,  165 

Stewart  v.  Aberdein, 468 

V.  Cauty, 60 

V.  Eddowes, 49 

Stikeman  v.  Dawson, 322 

Stoc'-dale  v.  Onwhyn, 210 

Stones  ('    Dowler, 73 

Stowell  ('.  Robinson, 47 

Stracy  v.  Bank  of  England,  .    .    .  186 

Strachan  ?'.  Thomas, 39 

Stratton  v.  Eastall, 21 

Stretton  v.  Busnach, 340 

Strithorst  v.  Gra>me,  ....  515,  517 

Stronghill  v  Buck, 22 

Stroud  r.  Marshall, 357 

Sturgis  V.  Darell, 617 

Summers  v.  City  Bank, 350 

Surtees  v.  Lister, 173 

Sutton  ('.  Sutton,     ...    38,  478,  509 
V.  Tatham,  ...    60, 193,  424 

Swan  V.  Phillips, 119 

Sweet?'.  Lee, 80,97,137 

Sweeting  v.  Pearce,  ....  468, 469 
Swift  V.  Winterbotham,  ....  120 
Syers  v.  Jonas, 61 

T. 

Tabrara  v.  Freeman 240 

Tallisr.  Talli.s,  ....  17,216,223 
Tanner  v  Smart,     .  522,  523,  525,  526 

Taplin  ?'.  Florence, 35 

Tarbuck  v.  Bispham, 359 

Taylor  v.  Ashton, 244 

ex  parte,  in  re  Burrows,  .    .  320 


TABLE   OF   CASES. 


XXJ 


Taylor  v.  Bowers, 305,  306 

V.  Chester, 211 

V.  Crowland  Gas  Co.,     .   .  254 

V,  Hihirv, 112 

V.  Laird^ 201 

V.  Stray, 60,  193 

Teal  r.  Auty, " 126,  131 

Teiu[>e.st  v.  Kilner,      ....  142,  387 

Tempson  r.  Knowles, ISO 

Tiiacker  i'.  Hardy,      ....  268,  272 
Thackoorseyda-s  r.  Dhondraull,  .  207 

Thomas  v.  Edwards, 235 

V.  Thomas, 175 

Thampson  c  Gardiner,      .        .    .  148 
I'.  Waitliman,  ....  530 
Thomson  v  Davenport, 

442,  443,  447,  453 


Tliornborow  v.  Whiteacre, 
Thorne  i:  Kerr, 
Thornton  v.  lUingworth 
Tluirsby  v.  Plant,    .    . 
Tidswell  V  Ankerstein 
Tomlinson  v.  Bullock, 

»'.  Gell, 
Toms  npp.  Cumins  re.s-p 
Foussaint  v.  Martinnant, 
Townes  V.  Mead.     . 
Tredwen  v.  I^.ourne. 
Trimble  v.  Hill,      . 
Truenian  r.  Hurst, 

V.  Loder,  . 
Tucker  v.  Lin<;er,    . 
Tuckey  v.  Hawkins, 
Tupper  V.  Fo:dkes, 
Turner  v.  Rookes,   . 

V.  Trisby,     . 

V.  Thomas,  . 

V.  Vau£(han, 
Turney  v.  Dodwell, 
Tweddle  v.  Atkinson 
Tyler  v.  Bennett,    . 


63, 


r 

.    .512 

.    .  522 

.    .    32 

.    .  275 

.    .  331 

108,  112 

.    .  406 

.    .  193 

.    .516 

.    .  395 

270,  272 

.  321 

, 421, 432 

.    59 

.  506 

7 

.496 

.315 

.  440 

.     17 

522,  532 

122,176 

.    .  123 


U. 


Udhe  V.  "Walters, 65 

Underwood  r.  Nicholls 468 

Unity   Banking    Association,   ex 

parte, 324 

Universal  Banking  Corporation, 

re,  ex  parte  Gunn, 158 

Unwin  v.  Leaper, 232 

Urquhart  v.  Macpherson,      .   .   .  248 


V. 

Valpy  V.  Gibson, 150 

Van  Casteel  i-.  Booker,     .   .  474,  480 


PAGE 

Vandenbergh  v  Spooner,  .    .    .    .149 
Varney  v.  Hickman,  ....  270,  271 

Vaughan  v.  Hancock, J  28 

Vere  v.  Ash  by, 400 

Vernon  v.  Smith, 32 

VoUans  v.  Fletcher, 103 

Von  Lindenau  v.  Desborough,     .  275 


W. 

Wade  V.  Simeon, 188 

V.  Tatton, 119,  120 

Wain  V.  Warlters, 7-7 

Wain  man  v.  Kynman, 634 

AVainwright  v.  Bland, 276 

Waite  V.  Jones, 20 

Waithman  v.  Wakefield,   ....  486 

\Vaketield  c.  Newton, 236 

Walcot  V.  Walker, 210 

Walker  v.  Bradford  Old  Bank,     .  295 

V.  Crofts, 291 

V.  Hunter, 542 

V.  Perkins, 211 

V.  Rostron, 206 

Wall's  case,  ?e  Imperial  Land  Co. 

of  Marseilles,      164 

Waller  v.  Lacv, 529 

Wallis  V.  Dayj 17 

V.  Lit"tell, 44 

Walsh  ?'.  Bishop  of  Lincoln,  .  .  283 
Walstab  r.  Spottiswoode,  .  .  .  .103 
Walton,  e.z  parte,  in  re  Levy,     .    .  561 

Ward  I'.  Bvrne 221 

V.  Hobbs, 245,  246 

Waring  v.  Favenck, 441 

Warner  v.  Harrison 164 

V.  M'Kay, 438 

V.  Willington, 96 

Warwick  r.  Pruce, 327 

Waterford  and  Dublin  Rail  Co.n. 

Pidcock, 386 

Waters  v.  Earl  of  Thanet,    .    .    .525 

V.  Tomkins, 534 

Watkins  v.  Nash, 11,  12 

V.  Rymill, 154 

Watson  V.  Eales, 385 

Watts  ('.  Friend, 150 

Waugh  V.  I'arver, 455,  462 

V.  Cope, 534 

V-  Morris, 2i8 

Webb  V.  Plummer, 59 

V.  Rhodes, 198 

V.  Commissioners  of  Heme 

Bay, 28 

Webber  v.  Lee, 131 

Webster  v.  Webster, 229 

Weeks  v.  ilaillardet, 6 

Weir  V.  Bell, 247 


xxu 


TABLE  OF   CASES. 


PACK 

Wei  ford  r.  Beazley, 88 

Wells  V.  llorton, 135 

V.  Malbon 344 

Wennall  v.  Adney, 203 

West  V.  Blakeway,      31 

Westliead  v.  Sproson, 167 

Westropp  V.  Solomon,  .  60, 193,  428 
Wetherell  v.  Jones,  ....  250,  256 
Wharton  v.  Mackenzie,  ....  313 
Wheatcroft  v.  Hickman,   .    .  454,  4>5 

AVhitcorub  v.  Whiting, 530 

White  V.  Bluett, 181 

V.  Cuyler, 487 

Whitehead  v.  Karron, 460 

V.  Greetham,  .    .  172,  J  89 

V.  Tuckett, 415 

Whitley  i).  Lowe, 531 

Whittaker  J).  Howe, 217 

AVhywall  v.  Champion      ....  320 

Widgery  v.  Tepper, 348 

Wigglesworth  v.  Dallison,     ...    56 

Wildest-.  Dudlow, 114 

Wiles  V.  Woodward, 23 

Wilkes  V.  Ellis, 406 

Wilkin  V.  Manning, 246 

Wilkinson  v.  Byers, 187 

V.  Evans, 151 

V.  Grant, 198 

V.  Lindo, 440 

V.  Lloyd, 388 

V.  Oliveira, 178 

Willatts  t;.  Kennedy,      .   .    .173,184 

Williams  v.  Byrnes, 84 

V.  Brisco, 96 

V.  Griffith, 522 

V.  Harrison, 321 

V.  Hedley, 802 

V-  Jones, 64  515 

V.  Jordan, 85 

V.  Keats, 460 

*.  Lake, 82,  149 

V.  Mercier,      .    .    .  332,  352 

V.  Moor, 321 

t).  Paul, 281 

c.  Protheroe, 237 


PAOl 

Williamson  v.  Clements,  .   .   .    .171 

V.  Dawes, 340 

V.  Watts 321 

Willis  r.  New  ham,     ....  534,  536 

Willison  V.  Patteson, 3G7 

Wilson  V.  Bevan, 1 86 

V,  Curzon, 385 

V.  Ford, 498 

V.  Mushett, 229 

V.  Poulter, 431 

V.  Stnignell,   ....  236,  305 

V.  Tunmian, 431 

r.  Wilson, 18,  229 

V.  Zulueta, 445 

Wing  V.  Mill, 201 

Wolton  V.  Gavin, 280 

Wontner  v.  Shairp, 163 

Wood  V.  Duke  of  Argyll,     .    .    .  462 

V.  Leadbitter, 31,35 

V.  Eowclifi'e,     ....  474,  475 
Worsley  v.   South   Devon   Eail. 

Co.        .... 35 

Worthington  v.  Grimsditch,     .    .  534 

V.  Warrington,    .    .  662 

Wright  V.  Dannah,     ....  146,  410 

V.  Stavert, 128 

Wyatt  V.  Hodson, 530 

X. 

Xenos  V.  Wiekham, 9 

Y. 

Yates  V.  Ash  ton, 29 

Yates  V.  Boen, 357 

Yea  V.  Fouraker, 522 

Yeatman,  ex  parte, 237 

Young  V.  Kitchin, 205 

V.  Corporation  of  Learning-    . 

ton, 380 

V.  Kaincock, 22 

V.  Schuler, 117 

V.  Timmins, 225 


TABLE  OF  STATUTES  CITED 

IN  THIS  BOOK. 

[the  figures  refer  to  the  marginal,  pages.} 


PAGE 

13  Edw.  1,  Stat.  3,  c.  1  (Statute  of 

Merchants),     .    •      3 

27  Edw.  3,  c.  9, lb. 

23  Hen.  8,  c.  (5,    ........   lb. 

27  Hen.  8,  c.  10  (Statute  of  Uses),  17 

32  Hen.  8,  c  34, 32 

13  Eliz.,  c.  5, 165 

c.  20, 290 

31  Eliz.,  c.  6, 282 

21  Jac.  1,  c.  16,   ...    .  513,518,520 

s.  4, 515 

s.  7, 514 

3  Car.  1,  c.  1, 279 

10  Car.  1,  sess.  2,  c.  6, 520 

16  Car.  2,  c.  7, 260,  266 

s.  3, 260 

29  Car.  2,  c.  3  (Statute  of  Frauds), 

5,  74 
6.  1,  .  75,132,133,413 
6.  2,  .    .    .    75,  132,413 

8.3 7.5,413 

8.4,  .  76,  86,  89,  90, 
92,  93,  96, 
97,  99,  102, 
105,110,111, 
114,115,  117, 
120,122,124, 
129, 130, 132, 
13.S,  137,  139, 
140,  142-144, 
146,  148-150, 
387,413. 

8.5, 75 

B.  6, 76 

8.7, lb. 

B.  17,  48,    76,    86,    124, 

125,127,141- 

146,149,150, 

387,411,413. 

ss.  19,  20,  21,   .    .    .    76 

c.  7  (The  Lord's  Dav  Act), 

277,  278 


3  Will.  3,  c.  14  (Statute  of  Fraud- 
ulent Devises),    . 


10  &  11  Will.  3,  c.  24,  s.  14,     .    .  282 

3  &  4  Anne,  c.  9, 295 

c.  16,  0.  19, 516.  518 

6  Anne,  c.  16, 19,  252,  465 

9  Anne,  c.  14,  s.  1, 260,  266 

s.  2, 261,  266 

10  Anne,  c.  19,  s.  121, 465 

12  Anne,  stat.  2,  c.'12, 282 

s.  2, 283 

8  Geo.  1,  c.  25, 3 

2  Geo.  2,  c.  22, 437 

13  Geo.  2,  c.  19, 262 

s.  1, 2G3 

18  Geo.  2,  c.  34,  s.  11,    .    .    .  262,  264 

19  Geo.  2,  c.  37,  s.  1, 274 

14  Geo.  3,  c.  48,  .    .    .    .  153,  273-276 

s,  2, 27G 

c.  78, ir)3 

34  Geo.  3,  c.  61, 282 

36  Geo.  3,  c.  86,  ss.  2,  3,    ....  253 
43  Geo.  3,  c.  84, 290 

54  Geo.  3,0.96, 13 

55  Geo.  3,  c.  194,  s.  15, 240 

57  Geo.  3,  c.  Ix., 465 

s.  2, 252 

c.  99      290 

58  Geo.  3,  c.  93, 297 

4  Geo.  4,  c.  83  (Factors^  ....  472 

6  Geo.  4,  c.  81,  ss.  25,  26,  ...    .  255 

c.  94  (Factors), 472 

7  Geo.  4,0.46, 120,383 

7  &  8  Geo.  4,  c.  25,     ....  289,  290 

9  Geo.  4,  c.  14  (Lord  Tenterden's 

Act),s.l,406,519,  534 

s.  5, 152 

s.  6, 117,118 

s.  7, 145 

c.  94, 290 

1  Will.  4,  c.  47   (Sir  E.  Sugdcn's 

Act), 33 

xxiii 


33 


XXIV 


TABLE   OF   STATUTES 


PAGE 

2  Will.  4,  c.  16,  ss.  11,  12,     .    .    .  257 

2  &  3  Will.  4,  c.  89  (Uniformity  of 

Process),  ....  5(i3 

3  &  4  Will.  4,  c  27  ( Limitutions),    38 

c.  42  (Limitations),    .  .'., 

38,  5(»5,  6U8,  518 

s.  4, 509 

s.  5,    .    .    .  510,512,529 

8.  6 513 

s.  7, 516,517 

3  &  4  Will.  4,  c.  104, 34 

6  &  6  Will.  4,  c.  41,   .    .  266,  297,  298 

s.  1, 267 

c.  63      292 

6&7  Will.'4,  c.  37,  s.  14,     .    .    !  282 
c.  76, 460 

I  &  2  Vict.,  c.  106, 290,291 

c.  1 10,       4 

2«&3  Vict.,  c.  11,  s.  8, lb. 

c.  54, 499 

3  Vict.,  CO, 263 

5  &  6  Vict.,  c.  39  (Factors),  .  472,  473 

s.  4, 482 

c.  45  (Copyright),  s.  13,     .    37 

6  &  7  Vict.,  c.  18,  s.  100,  ....  406 

7  &  8  Vict.,  c.  48,        253 

c.  110, 382,389 

c.  113, 383 

8  Vict.,  c.  16  (Companies  Clauses 

Consolidat  ion 
Act,  1845),  .    .    .382 
c.  18  (Lands  Clauses  Con- 
solidation      Act, 

1845), lb. 

c.  20  (Railway  Clauses  Con- 
solidation      Act, 

1845), lb. 

8  &  9  Vict.,  c.  106,  s.  3,  .    .    .    37,  132 

s.  5, 13 

c.  109, 260,  267 

s.  15,     ....  266,298 
s.  18,      ....  266,  -269 

II  &  12  Vict.,  c.  63,  s.  69,  .    .    .    .110 

s  85, 380 

15  &  16  Vict.,  c.  76  (Common  Law 

Procedure      Act, 
1852),  s.  132,    .    .      4 

16  &  17  Vict.,c.  107,  ss.  170,  171, 

172, 250 

c.  113,  ss.  24,  27,     ....  530 
c.  119,  s.  5, 271 

17  &  18  Vict.,  c.  90, 260 

c.  104  (  Merchant  Shipping 
Act,  1854),  s.  55, 
sched.  E.,      ...    38 

c.  125  (Common  Law  Pro- 
cedure Act,  1854), 
ss.  68-74,  ....  501 
19  &  20  Vict.,  c.  47, 382 


PAGB 

19&20  Vict.,  c.  47,  s.  43,     .    .    .  401 
c.    97     (Mercantile     Law 
Amendment  Act, 
1856),  s.  3,   .    79,  115 

s.  9, 537 

8.  10,     ....  50),  515 
8.11,     ....  510,519 

8.  12, 517 

s.  13,     ....  406,  530 

s.  14, 5:i0 

20  &  21  Vict.,  c.  49, 382 

c.  80, lb. 

c.  85,  s.  7 •  .    .  342 

ss.21,  26, 343 

23  Vict.,  c.  28, 277 

25  &  26  Vict.,  c.  89  (Companies 
Act,  1862), 

374,375,383,396 
8.  4,    .    .    .  292,  293,  397 

8.  18, 399 

ss.  23,  31,  Table  A.,  404 

8.  38, 4o3 

8.  47,      ....  400,  401 
6.  55,     .    .    ....  400 

8.  75, 403 

ss.  79,  80, 402 

ss.  90,  1 34,    ...    .  403 
27  &  28  Vict.,  c.  1 1  ',  s.  1,  .    .    .    .      4 
30  &  31  Vict.,  c.  23,  s.  7,   .    .    .    .152 
c.    131    (Companies    Act, 

1867),    ...        .383 
.      8.  37, 377, 399 

32  &  33  Vict.,  c.  46,  s.  1,  .    .    .    .    34 

c.  62  (Debtor's  Act,  1869), 

ss.  4,  5,      ....  109 

c.  70, 246 

c.    71    (Bankruptcy    Act, 

1869),  ss.  31,39,    439 
3. 49 204 

33  &  34  Vict.,  c.  14  (Naturaliza- 

tion  Act,    1870), 

s.  2, 368 

c.  23,  8.  1, lb. 

ss.  6,  7,  8,  30,    .    .    .  369 
c.  60  (London  Brokers'  Ee- 
lief  Act,  1870,1,  s. 

2, 465 

c.   93  (Married   Women's 
Property         Act, 
187U),    .    .    .  334,339 
8.  1,    .    .    .  338,348,352 

8.  10, 349 

8.  11,     ....  332,349 
s.  12,      ....  331,352 

8.  15, 331 

c.  104  (Joint  Stock  Com 
panics  Arrange- 
ment Act,  1870),  383 


CITED    IN    THIS    BOOK. 


XXV 


PAGE 

36  &  37   Vict.,  c.  66  (Judicature 

Act,  1873),  s.  3,  .      1 

8.  24, 538 

sub.-s.  (4),   .    .    99 
8. 25,  sub.-s.  (6), 

31, 32,  238,  294 

sub.-s.(ll),  99,  538 

s.  34, 34 

37  &  38  Vict.  c.  34,  s.  2,     ....  240 

c.  50  (Married  Women's 
Property  Act 
(1870),  Amend- 
ment Act,  1874), 

334, 339 

s.  1, 332 

.    s.  2, 332,  333 

s.  5, 333 

C.  57  (Real  Property  Limi- 
tation Act  1874), 
s.  1,   .    .    .    .    38, 510 

8.4, 38,510 

s.  8,    .    .    .    38,509,512 
c.  62  (Infants  Relief  Act, 

1874),  s.  1,  .  325,  326 
s.  2,   .    .    .  152,  32o,  326 

38  &    39   Vict.,   c.   55    (Public 

Health  Act,  1875), 
s.  174,   •••_•_     379 

c.  60    (Friendly   Societies 

Act,  1875),  s.  28,   276 
sub-s.  (8),     ...   lb. 

c.  77      (Judicature      Act, 

1875),  S.21,  .    .    .      4 
Sched.  I.,  O.  l.,r.  1,    .  502 

39  &  40  Vict.,  c.  36,  s.  288,    .    .    .  250 

c.  80,  s.  24, •   lb. 

40  &  41  Vict.,  c.  26  (Companies 

Act,  1877),    .    .    .  383 
c.  39  (Factors'  Act,  1877), 

473,  475,  477 

s.  1, 478 

s.  2, lb. 

8.  3, 479 

s.  4, 480 

s.  5, 481 

s.  6, 483 

41  V'ct.,  c.  19,  s.  4, 342 

41  &  42  Vict.,  c.  49  (Weights  and 

Measures       Act, 
1878),  8S.  19,  21,  291 


PAGE 

42  &  43  Vict.,  c.  59  (Civil  Pro- 

cedure Acts   Re- 
peal Act,  1879),  s. 

3, 368,  513 

c.     76     (Companies     Act, 

187^),    .    .    .    .    .383 

43  Vict.,  c.  19   (Companies  Act, 

1880), lb. 

45  &   46  Vict.,  c.  61  (Bills  of  Ex- 
change Act,  1882), 

s.  31, 296 

s.  67 192 

s.  72, 365 

ss.  83-89, 296 

s.  96,  Sched.  II.,   .  295 

45  &  46  Vict.,  c.  75  (Married 
Women's  Prop- 
erty Act,  1882),  .  339 
8.1,  sub.-s.  (1),  .  .  3.38 
sub.-s.  (2),  350, 354 
sub.-s.  (3), 

354, 487,  499 
sub.-ss.  (4),  (5), 

354 
8.  2,  .  .  .  337,  338,  354 

s.  13, 334 

s.  14,   ......  335 

s.  15, 336 

45  &  46  Vict.,  c.  75  (M.  W.  P. 

Act,  1882),  s.  22, 

334,  353 

8.  24 338 

8.  25, 334 

46  &  47  Vict.,  c.  28  (Companies 

Act,  1883),  .  .  .383 

c.  49,  ss.  4,  5,  7, 437 

c.   52    (Bankruptcy    Act, 

1883),  s.  30,  ...  204 
ss.  37,  38,  ....  440 
c.    57     (Patents,    Designs, 

and  Trade  Marks 

Act,  1883),   ...    37 

47  &    48   Vict.,   c.   3    (London 

Brokers'      Relief 
Act,  1884),  s.  2,  . 

252, 465 
8.  3. 252 


THE 

LAW  OF  CONTRACTS. 


LECTURE  I. 


ox    THE    NATUKE    AND    CLASSIFICATION    OF     CONTKACTS 
AND    ON    CONTRACTS    BY    DEED. 

The  whole  practice  of  our  English  Courts  of  Com- 
mon Law  {a),  if  we  except  their  criminal  jurisdiction 
and  their  administration  of  the  law  of  real  property,  to 
which  may  be  added  those  cases  which  fall  within  the 
fiscal  jurisdiction  of  the  Court  of  Exchequer,  may  be 
distributed  into  two  classes.   Contracts  and   Torts.     Of 
this  you  can  easily  satisfy  yourselves  by  putting  to  your 
own  minds  any  conceivable  case  of  legal  inquiry.     If  it 
do  not  involve  a  question  of  criminal  law,  or  of  the  title 
to  land,  or  of  Exchequer  jurisdiction,  you  will  find 
that  it  resolves  itself  into  a   Contract  or  a  ^Tort.    r^^oi 
Thus,  suppose  it  to  be  the  non-performance  of  a 
covenant,  the  non-payment  of  a  bond,  the  dishonour  of 
a  bill  of  exchange,  the  non-payment  of  rent,  the  default 
of  a  surety, — these  are  all  subjects  of  inquiry  arising 
from  contracts.     So,  again,  if  it  involve  an  assault  on 
the   person,  an  injury   to  the   reputation  by  libel   or 
slander,  a  nuisance  to  the  dwelling,  a  conversion  of  prop- 
erty,— these   are   only  so   many  descriptions   of  torts. 
And  as  the  subjects  of  legal  inquiry  divide  themselves, 
so  do  the  forms  in  which  the  inquiry  is  carried  on ;  for 

(a)  The  Superior  Courts  of  Common  Law  are  now  merged  in  the  Supreme 
Court.    See  36  &  37  Vict.  c.  66  (Supreme  Court  of  Judicature  Act,  1873),  s.  3. 


2  CLASSIFICATION   OF   CONTRACTS.  [lECT.  I. 

all  actions,  as  you  are  aware,  are  of  Tort  or  of  Con- 
tract, a  division  wliicb,  as  you  see,  is  rendered  neces- 
sary by  the  very  nature  of  tilings,  and  does  not  result 
from  any  arbitrary  principle  of  arrangement. 

Now,  therefore,  the  whole  subject-matter  of  the  in 
quiries  about  which  our  Courts  of  Law  are  conversant 
(excepting  the  cases  I  have  excepted)  being  distributable 
into  these  two  heads,  Contract  and  Tort,  I  am  about  to 
take  the  former  of  them,  that  of  Contract,  and  to  state 
those  principles  of  every-day  recurrence  which  govern 
the  law  of  England  relative  to  contracts,  and  which  it  is 
absolutely  necessary  that  every  lawyer  should  bear 
constantly  in  mind,  and  have  (to  use  the  ordinary  ex- 
pression) at  his  fingers'  ends,  if  he  will  avoid  falling  into 
egregious  mistakes  in  the  course  of  his  daily  practice. 

All  contracts  are  divided  by  the  Common  Law   of 
England  into  three  classes  : — 
^.  _,      '-'1.  Contracts  by  matter  of  record. 
•-    -■        2.  Contracts  under  seal. 

3.  Contracts   not   under  seal,   or   simple   con- 
tracts.^ 

With  regard  to  contracts  by  matter  of  record,  they 
are  so  little  used  in  the  ordinary  affairs  of  ])rivate  indi- 
viduals, that  I  may  dismiss  them  in  a  very  few  words. 
A  Record  is  a  memorial  or  remembrance  on  rolls  of 

'  A  useful  division  of  this  third  class  is  adopted  by  Mr.  Leake  (Digest  of 
the  Law  of  Contracts,  pp.  21,  '12,  and  Chap.  I.,  Sec.  2).  Following  Austin,  he 
distinguishes  between  simple  contracts  formed  by  agreement,  and  contracts 
implied  in  law.  To  the  first  class  he  assigns,  however,  not  merely  express 
agreements,  but  such  contracts  as  are  proved  by  circumstantial  evidence  mani- 
festing the  intention  of  agreement  by  the  parties:  Thorn  v.  City  of  London, 
L.  R.  10  Ex.  123;  while  he  uses  the  term  "implied  in  law"  to  denote  the 
class  of  simple  contracts  raised  by  law  from  facts  and  circumstances  independ- 
ent of  agi-eement  and  in  which  an  agreement  or  promise,  if  implied  at  all,  is 
an  implication  of  law  only,  and  has  no  existence  in  fact.  This  class  of  con- 
tracts is  discussed  below,  pages  *197  el  seq.,  but  their  character  would  perhaps 
be  more  easily  understood  if  the  distinctive  classification  and  treatment  of 
Mr.  Leake  had  been  adopted. 


LECT.  I.]  CONTRACTS   OF    KECOED.  8 

parchment  {b) ;  and  such  memorial  is  not  a  record  until 
enrolled  in  the  proper  office  (c).  At  an  early  period  of 
our  law,  statutes  merchant  and  statutes  staple,  which  are 
both  contracts  of  record  for  tlie  payment  of  debts,  were 
commonly  in  use.  Subsequently,  recognizances  in  the 
nature  of  a  statute  staple  were  established  {d).  These 
contracts  are,  however,  now  almost  unheard  of.  The 
only  contract  of  record  with  which  we  now  occasionally 
meet  is  a  recognizance,  and  that  oftener  in  matters  in 
which  the  Crown  is  concerned  than  between  subject 
and  subject  (e)}  Thus  an  ordinary  mode  of  compelling 
a   witness  to   attend   and   prosecute   or   give   evidence 

(6)  Co.  Litt.  260  a. 

(c)  Q.  V.  Hughes  and  others,  36  L.  J.  Privy  Coim.  23 ;  Com.  Dig.  Kecord. 

(d)  13  Ed.  I.,  Stat.  3,  c.  1  (The  Statute  of  Merchants) ;  27  Ed.  III.,  c.  9;  23 
Hen.  VIII.,  c.  6 ;  8  Geo.  I.,  c.  25.  See  also  2  Bl.  Coram.,  p.  160,  ed.  by 
Coleridge. 

(e)  It  seems  that  the  recognizance  of  a  receiiper  under  the  Court  makes 
moneys  due  from  him  and  unaccounted  for,  a  debt  of  record  as  long  as  the 
recognizance  exists.    Seagram  v.  Tuck,  18  Ch.  Div.  296 ;  50  L.  J.  (Ch.)  572. 

^  A  statute  provision  requiring  a  deed  or  contract  to  be  recorded  for  safe 
keeping,  and  notice  to  purchasers,  does  not  thereby  make  it  a  record,  in  the 
teclinical  sense  of  that  term.  And  it  has  been  so  held  even  in  cases  in  which 
the  legislature  have  directed  the  process  upon  such  deed  or  contract  to  be  by 
scire  facias,  a  writ  which  at  common  law  lies  on  a  record  only.  Thus,  in 
Pennsylvania,  it  has  been  decided  that  nul  iiel  record  is  no  plea  to  a  scire  facias 
on  a  mortgage :  Frear  v.  Drinker,  8  Pa.  St.  620 ;  see  also  that  the  registry  of 
a  mechanic's  lien  is  no  record,  and  to  a  scire  facias  upon  it,  the  plea  of  nul 
tid  record  is  a  nullity,  Davis  v.  Church,  1  W.  &  S.  240.  A  recognizance  is  a 
debt  of  record,  entered  into  before  some  court,  judge,  or  magistrate,  having 
authority  to  take  the  same :  Com.  v.  Emery,  2  Binn.  431 ;  Pace  v.  Mississippi, 
25  Miss.  54.  If  the  recognizance  does  not  show  that  the  court  or  judge  had 
jurisdiction  of  the  subject-matter,  it  is  void:  Bridge  v.  Ford,  4  Mass.  641,  7 
Mass.  209 ;  Com.  v.  Bolton,  1  S.  &  R.  328.  It  need  not  be  under  the  seal  of 
the  party:  State  v.  Root,  2  Rep  Const.  Ct.  123;  Hall  v.  State,  9  Ala.  827; 
nor  signed.  A  certificate  that  it  was  acknowledged  on  the  day  of  its  date  is 
sufficient:  Madison  v.  Com.,  2  A.  K.  Marsh.  131 ;  Com.  v.  Mason,  3  lb.  456. 
It  cannot  be  aided  by  parol  averments.  If  made  returnable  at  a  time  when 
no  term  of  court  is  holden,  and  there  is  nothing  in  the  record  from  which 
the  court  can  infer  that  such  time  was  intended  to  describe  the  time  of  the 
next  session  of  the  court,  the  recognizance  is  void:  Treasurer  ?•.  Merrill,  14 
Vt.  64;  The  State  v.  Crippen,  1  Ohio  St.  399.  See  Com.  v.  Bolton,  1  S.  & 
R.  328.    A  paper  purporting  to  be  a  recognizance,  but  taken  by  one  not 

3 


4  CONTRACTS   OF   KECOED.  [lECT.  I. 

*in  a  criminal  case  is  by  recognizance,  in  which  he 
L  J  binds  himself  to  the  Queen  in  a  certain  sum  con- 
ditioned for  the  performance  of  the  duty  imposed  on 
him ;  and  in  case  of  his  making  default,  that  sum  ac- 
cordingly becomes  forfeited,  and  payable  to  Her  Maj- 
esty. The  commonest  case  of  a  recognizance  between 
subject  and  subject  was  that  of  bail ;  which  has,  however, 
become  much  less  frequent  since  the  Act  restraining  tlie 
right  to  arrest  on  mesne  process  (/).  It  may  be  added 
that  statutes  and  recognizances  no  longer  affect  lands, 
unless  registered  under  stat.  2  &  3  Vict.  c.  11,  s.  8,  and 
the  lands  themselves  have  been  actually  delivered  in 
execution  {g). 

The  peculiar  incidents  of  contracts  of  record  are : — 
First,  that  like  all  records,  they  prove  themselves ;  that 
is,  their  bare  production,  without  any  further  proof,  is 
sufficient  evidence  of  their  existence,  should  it  be  con- 
troverted. 

Secondly,  that,  if  it  become  necessary  to  enforce  them, 

(/)l&2Vict.  c.  110. 

ig)  See  27  &  28  Vict.  c.  112,  s.  1. 

authorized,  although  not  technically  a  recognizance,  is  good  as  a  bond  at  com- 
mon law :  Dennard  v.  State,  2  Ga.  137 ;  contra,  Sargent  v.  State,  16  Ohio  2G7. 
The  mere  fact  that  proceedings  are  erroneous,  will  not  avoid  a  recognizance 
given  in  the  course  of  them :  Cora.  v.  Haffey,  6  Pa.  St.  348.  A  recognizance 
need  not  recite  the  special  facts  which  gave  the  officer  an  authority  to  act  in 
the  particular  case  in  which  it  was  taken.  It  is  enough  if  he  had  jurisdiction 
in  cases  of  that  general  description  ;  and  it  appears  that  the  condition  is  to  do 
something  to  which  a  party  may  legally  be  bound  by  recognizance :  People  v. 
Kane,  4  Denio,  530;  The  People  v.  Millis,  5  Barb.  511;  Gildersleeve  v.  The 
People,  10  lb.  35.  The  record  is  not  the  forfeiture  of  a  recognizance,  but 
only  evidence  of  it ;  and  neglect  of  the  clerk  to  omit  to  record  the  forfeiture 
when  it  is  decreed,  cannot  aflect  it.  It  may  be  entered  nwac  pro  tunc,  and  the 
record,  when  so  amended,  is  conclusive  in  a  collateral  proceeding :  Ehoads  v. 
The  Com.,  15  Pa.  St.  272.  A  recognizance  taken  in  open  court  is  of  itself 
evidence  that  it  was  taken  by  the  order  of  the  court  witliout  any  formal  entiy 
to  that  effect :  Chumasero  v.  People,  18  111.  405.  A  recognizance  is  a  com- 
mon law  obligation  and  the  sureties  may  be  bound  separately  from  their 
principal :  People  v.  Dennis,  4  Mich.  609.  A  recognizance  being  a  record 
cannot  be  averred  against;  People  v.  Watkins,  19  III.  120.— S. 

4 


LECT.  I.]       CONTEACTS  OF  RECORD.  4 

that  may  be  done,  if  it  be  thought  proper,  by  writ  of 
scire  facias  (h), —  a  writ  which  lies  on  a  record  only,  and 
cannot  be  made  use  of  for  the  purpose  of  enforcing  any 
other  description  of  contract.^ 

An  obligation  by  record,  however,  may  be  *dis- 
charged  by  a  deed  of  release,  though  a  deed  is  a      ^    ^ 
matter  of  inferior  degree  (i). 

However,  as  I  said,  the  other  two  classes  of  contracts 
are  those  which  are  of  most  practical. importance,  and  to 
tJi.em,  therefore,  my  observations  will  be  addressed. 
These,  as  I  have  said,  are — 

1.  Contracts  by  deed. 

2.  Contracts  without  deed,  or  simple  contracts. 
1 .  With  regard  to  contracts  by  deed : 

A  deed  is  a  written  instrument,  sealed  and  de- 
livered (j). 

Let  us  pause  for  a  few  moments  to  consider  the  parts 
of  this  definition. 

In  the  first  place,  it  is  a  written  instrument,  and  this 
writing,  the  old  books  say,  must  be  on  paper  or  parch- 
ment ;  for  if  it  were  written  on  linen,  wood,  or  other 
substance,  it  would  not  be  a  deed  {k).  But,  though 
every  deed  must  be  written  (/),  it  is  not  necessary  that 
every  such  instrument  should  be  signed,  for,  at  Common 
Law,  signature  was  not  essential  (m)  ;  and,  although  by 
several  statutes,  particularly  the  Statute  of  Frauds  (n),' 
signature  has  been  rendered  essential  to  the  validity  of 

(h)  Still,  it  seems,  regulated  by  15  &  16  Vict,  c,  76,  s.  132;  see  38  &  39 
Vict.  c.  77,  s.  21. 

(i)  Barker  v.  St.  Quintin,  12  M.  &  W.  441 ;  Shepp.  Touch.  322. 

(j)  Co.  Litt.  171  b;  Shepp.  Touch.  50.  See  lliblilewliite  v.  M'Morine,  6  M. 
&  \V.  200. 

(k)  Co.  Litt.  35  b.  (l)  Shepp.  Touch.  54. 

(m)  lb.  56.  (n)  29  Car.  II,  c.  3. 

^  By  statute  in  Pennsylvania,  and  perhaps  in  some  other  States,  S(  ire  facia* 
is  the  method  of  proceeding  to  forclose  a  mortgage :  Bouvier's  Law  Diet,  sub 
wee;  Bispham's  Equity,  od  ed.,  §  156. 

5 


6  ON   CONTKACTS   BY   DEED.  [lECT.  1 

certain  specified  contracts,  yet  *tliere  are  many 
L  -I  contracts  which  are  not  affected  by  any  statute ; 
and  to  these  last-mentioned  contracts,  and  also  to  those 
which  are  the  subject  of  several  sections  of  the  Statute 
of  Frauds  (o),  if  entered  into  by  deed,  signature  is  not 
necessary  {p)} 

Secondly,  it  must  be  sealed  and  delivered.     This  is 

(o)  See  Shepp.  Touch,  by  Preston,  56 ;  Cooch  v.  Goodman,  2  Q.  B.  (42  E. 
C.  L.  E.)  580 ;  Aveline  v.  Whisson,  4  M.  &  Gr.  (43  E.  C.  L.  E.)  801 ;  Cherry 
V.  Heming,  4  Exch.  631.     See  2  Blackst.  Ck)mm.  305. 

(p)  Bac.  Abr.  Obligation,  C. 

» Maule  V.  Weaver,  7  Pa.  St.  332 ;  Jeffery  v.  Underwood,  1  Ark.  108.  But 
see  Armstrong  v.  Stovall,  26  Miss.  275. — s. 

What  was  said  in  these  cases  as  to  the  necessity  of  signature  is  mere  dictum, 
as  an  examination  of  them  will  show.  But  in  the  very  recent  case  of  Miller 
V.  Euble,  15  W.  N.  C.  431,  the  Supreme  Court  of  Pennsylvania  had  to  pass 
definitely  upon  the  question.  A  statute  provides  that  when  a  conveyance  is 
to  be  made  of  the  real  estate  of  a  married  woman,  husband  and  wife  shall  join 
and  "  it  shall  be  lawful  for  them  to  make,  seal,  deliver,  and  execute  a  deed  for 
the  same,  and  after  such  execution"  to  appear  before  a  proper  officer  and 
acknowledge  the  same.  In  that  case  the  deed  recited  six  grantors,  of  whom  two 
were  a  husband  and  his  wife  in  right  of  the  wife.  After  the  attesting  clause 
were  six  scroll  seals,  opposite  one  of  which  the  wife  signed.  The  husband  did 
not  sign,  but  both  appeared  before  a  justice  of  the  peace  and  duly  acknowledged 
the  instrument.  The  court  held  that  the  interest  of  the  wife  did  not  pass  to 
the  grantee.  In  the  opinion  Chief  Justice  Mercur  says:  "The  great  industry 
and  careful  search  of  counsel  have  not  resulted  in  his  being  able  to  cite  a  case 
since  McDill  v.  McDill  (1  Dallas,  64),  in  which  it  Avas  held  by  this  court  on  a 
direct  presentation  of  the  question  that  a  deed  professing  to  convey  land  was 
sufficiently  executed  without  any  signature  of  the  vendor.  On  the  contrary, 
in  Watson  v.  Jones  (4  Norris,  117),  McDill  v.  McDill  is  cited  approvingly  by 
Mr.  Justice  Gordon.  Tlie  recognition  of  any  rule  which  dispenses  with  the 
necessity  of  the  signature  of  the  grantor  would  be  fraught  with  great  mis- 
chief. Aided  by  a  pliant  justice  of  the  peace,  or  by  a  false  personation  before 
an  honest  one,  it  would  provide  a  convenient  way  to  rob  a  man  of  his  land 
without  the  trouble  and  danger  of  counterfeiting  his  signature.  .  .  .  Sealing 
and  delivery  are  not  the  only  requisites  which  must  precede  the  a'.-knowledg- 
ment.  They  nuist  first  make  the  deed.  Tliis  clearly  imports  the  signing 
thereof.  Until  that  is  done  it  would  be  a  forced  construction  of  this  language 
to  say  they  had  made  a  deed.  The  manifest  meaning  of  tliis  word  in  the  con- 
nection in  which  it  is  used,  is  that  the  deed  shall  be  duly  prepared  and  be 
signed  by  them.  The  sealing  is  referred  to  as  a  separate  act."  The  entire 
opinion  sliould  be  read.  In  Washburne  on  Eeal  Property  (4th  ed.)  *553,  it  is 
stated  that  "  In  most  of  the  States,  however,  a  signature  is  required ;  and,  in 
all,  it  is  uniformly  practised." 

6 


LECT.  I.]  ON    CONTRACTS    BY*  DEED.  6 

the  main  distinction  between  a  deed  and  any  other  con- 
tract. The  seal  is  an  indispensable  part  of  every  deed/ 
and  so,  except  in  case  of  the  deed  of  a  corporation  (q), 
is  the  delivery  {r).  From  this  delivery  it  is  a  perfect 
deed,  taking  its  effect  from  this  essential  part  of  its  com- 
pletion is).  It  obviously  follows  immediately  from  this 
proposition  that  after  delivery  it  cannot  be  altered — not 
even  by  filling  up  a  blank  {t)?  With  regard  to  delivery, 
however,   you  must  observe  that  it  is   not  absolutely 

{q)  Case  of  Dean  and  Chap,  of  Femes,  Dav.  Rep.  116;  Derby  Canal  Co.  i;. 
VVilmont,  9  East,  360. 

(r)  Shepp.  Touch.  57. 

(s)  Goddard's  Case,  2  Rep.  4  b. 

(0  Weeks  v.  Maillardet,  14  East,  568 ;  Hibblewhite  v.  M'Morine,  6  M.  &  W. 
200. 


'  The  policy  of  the  common  law  as  to  the  use  and  nature  of  a  seal,  was  very 
fully  discussed  by  Kent,  C.  J.,  in  "Warren  v.  Lynch,  5  Johns.  244,  where  the 
Court  refused  to  recognize  a  scrawl  or  scroll  made  by  the  pen  as  a  seal,  and 
held  that  a  seal  must  be  composed  of  wax  or  some  tenacious  substance.  By 
statute  in  that  State,  however  (Stat,  of  7  April,  1848,  c.  197),  the  impres- 
sion of  the  seal  upon  the  paper  is  sufficient  in  the  case  of  a  corporation,  and 
the  statutes  of  Maine,  Vermont,  New  Hampshire,  and  Massachusetts,  give 
validity  to  such  impressions  in  the  case  of  legal  processes  and  official  docu- 
ments. With  this  exception,  all  the  New  England  States  adhere  to  the  com- 
mon law  requisitions  of  a  seal.  In  New  Jersey,  a  scroll  with  the  pen  is  a  suf- 
ficient seal  on  any  instrument  for  the  payment  of  mono  v.  (Rev.  Stat.  1846.) 
By  the  common  law  of  Pennsylvania,  Delaware,  Nortl  and  South  Carolina, 
and  Mississippi,  such  a  scroll  lias  always  been  recognized  as  a  sufficient  seal, 
and  in  most,  if  not  all  the  other  States,  it  is  believed  that  the  law  has  been  so 
settled  by  statute.  [See  title  "Scroll"  in  Rawle's  Bouvier's  Law  Dictionary.] — 

K. 

See  Roberts  v.  Pillow,  1  Hempst.  624.  The  fact  tliat  a  writing  contains  tlie 
words  "sealed  with  my  seal,"  when  there  is  no  seal  or  scroll  attached,  will  not 
make  it  a  sealed  instrument:  Chilton  v.  People,  66  111.  501. — s. 

^  This  rule  must  he  understood,  however,  to  apply  to  material  altera- 
ticns  or  additions:  Pigot's  Case,  11  Coke  26  b;  Waugh  v.  Bussell,  5  Taunt. 
(1  E.  C.  L.  R.)  707 ;  Wood  v.  Slack,  L  R.  3  Q.  B.  379;  SuffisU  v.  Bank,  7  Q. 
B.  D.  270 ;  Hale  v.  Russ,  1  Greenl.  334 ;  Knapp  v.  Maltby,  13  Wend.  587 ; 
Marshall  v.  Gougler,  10  S.  &  R.  164. 

In  Master  v.  Miller,  1  Anstr.  228,  Wilson,  J,  is  reported  as  saying:  "I 
remember  the  case  of  Texira  v.  Evans,  before  Lord  Mansfield,  which  was  this : 
Evans  wanted  to  borrow  400/.  or  so  much  of  it  as  his  credit  should  be  able  to 
raise ;  for  this  purpose  he  executed  a  bond,  with  blanks  for  the  name  and  sum, 
and  sent  an  agent  to  raise  money  on  the  bond;  Texira  lent  200/.  on  it,  and 

7 


6  ON   CONTRACTS   BY   DEED.  [LECT.  T. 

necessary  that  the  party  executing  should  take  the  in- 
strument into  his  hand  and  give  it  to  the  person  for 
whose  benefit  it  is  intended  (w) ;  but  as  it  is  said  by 

(u)  See  Groodright  v.  Strapham,  Cowp.  204,  and  Bac.  Abr.  Obligation,  C. 

the  agent  accordingly  filled  up  the  blanks  with  that  sum  and  Texira's  name, 
and  do'ivprfd  the  bond  to  him.  On  non  est  factum  pleaded,  Ix>rd  Mansfield 
held  it  a  good  deed."  This  statement  of  the  case  of  Texira  v.  Evans  seems  to 
to  liave  been  accepted  as  law  in  England  (or  at  any  rate  in  many  of  the  United, 
States)  for  many  years,  but  in  1840  it  was  overruled  in  Hibblewhite  v.  M'Mor- 
ine,  6  M.  &  W.  200,  which  may  now  be  considered  as  settled  law :  Swan  v. 
North  British,  &c.,  Co.,  2  H.  &  C.  175.  These  are  both  instances  of  the  most 
important  class  of  cases  in  which  the  question  arises,  viz. :  those  in  which 
powers  of  attorney  to  transfer  shares  of  stock  have  been  given  with  blanks 
for  the  name  of  the  transferee.  These  cases  determine  that  such  instruments 
are  void  and  are  not  validated  by  being  filled  up  by  a  party  other  than  the 
maker,  unless  such  person  is  authorized  to  supply  them  by  an  instrument 
under  seal.  The  practice  of  the  Stock  Exchange  to  deliver  stock  in  this  way, 
the  names  to  be  inserted  by  the  purchasing  broker,  was  not  allowed  to  prevail 
against  this  rule:  Tayler  v.  Great  Indian,  &c.,  E'way,  4  De  G.  &  J.  559.  In 
these  cases,  however,  the  act  establishing  the  company,  or  the  articles  of  asso- 
ciation under  which  it  operated,  required  that  the  transfer  of  shares  should 
De  by  deed.  In  a  later  case  where  the  articles  of  association  provided  that 
the  transfer  of  shares  should  be  by  an  "  instrument  in  writing "  it  was  held 
that  blank  "transfers"  could  be  filled  up  by  an  authorized  agent  and  would 
then  be  valid,  though  void  as  deeds,  and  though  the  uniform  practice  of  the 
company  was  to  require  a  deed  of  transfer.  It  does  not  appear  whetlier  these 
transfers  purported  to  be  sealed  or  not:  Ex  parte  Sargent,  L.  E..  17  Eq.  273; 
Prance  v.  Clark,  22  Ch.  Div.  830.  The  American  decisions  are  conflicting,  a 
majority  of  the  States  adhering  to  the  strict  rule,  but  a  considerable  minority 
qualifying  it,  or  rejecting  it  altogether  ;  see  the  cases  collected  in  a  note  to 
Preston  v.  Hull,  12  Am.  L.  Eeg.  699.  As  to  transfers  of  shares  of  stock,  the 
custom  is  for  tlie  assignor  to  fill  up  a  power  of  attorney  under  seal,  to  execute 
a  transfer  on  the  books  of  the  company  (usually  printed  on  the  back  of  the 
certificate)  with  the  name  of  the  issignee  left  blank,  and  the  certificate  thus 
indorsed  may  be  passed  from  hand  to  hand,  and  the  last  holder  will  be  en- 
titled to  fill  up  the  assignment  with  his  own  name,  and  complete  the  transfer 
on  the  bookb  of  the  company:  Eiddle,  Law  of  Stockbrokers,  268  et  seq. ; 
Morawetz,  Private  Corporations,  |§  328  et  seq.  and  cases  cited.  In  Worrall  v. 
Munn,  5  N.  Y.  239,  it  is  said  that  the  strictness  of  the  Common  Law  has 
been  relaxed  and  that  the  present  doctrine  may  be  thus  stated :  "  If  a  con- 
veyance or  any  act  is  required  to  be  by  deed,  the  authority  of  the  attorney 
or  agent  to  execute  it  must  be  conferred  by  deed ;  but  if  the  instrument  or 
act  would  be  effectual  without  a  seal,  the  addition  of  a  seal  will  not  render  an 
authority  under  seal  necessary,  and  if  executed  under  a  parol  authority  or 
subsequently  ratified  or  adopted  by  parol,  the  instrument  or  act  will  be  valid 
and  binding  on  the  principal."     See  Kneedler's  Appeal,  92  Pa.  St.  428. 


LECT.  1.1  ON    CONTRACTS   BY    DEED.  6 

Lord  Cohe  {x) :  "a  deed  may  be  delivered  by  words  without 

actual  touch,  or  by  touch  without  '^'words.^^    "  The      ^.   ^ 

•  •  •  •  •  r  71 

delivery,"  bis  Lordship  says, "  is  sufficient  without      ^    -^ 

any  words ;  for,  otherwise,  a  man  who  is  mute  could  not 
deliver  a  deed  ....  And,  as  a  deed  may  be  delivered  to 
the  party  without  words,  so  may  a  deed  be  delivered  by 
words  without  any  act  of  delivery ;  as,  if  the  writing 
sealed  lieth  on  the  table,  and  the  feoffor  or  obligor  saith 
to  the  feoffee  or  obligee,  *  Go,  and  take  up  the  writing,  it 
is  sufficient  for  you,  or  it  will  serve  the  turn,  07'take  it  as 
my  deed,'  or  the  like  words,  it  is  a  sufficient  delivery  "(3/). 
However,  in  practice  it  is  always  safest  and  most  ad- 
visable to  follow  the  ordinary  and  regular  course, 
which  is,  to  cause  the  person  who  is  to  deliver  the  deed 
to  place  his  finger  on  the  seal,  thereby  acknowledging 
the  seal  to  be  his  seal,  and  state  that  he  delivers  the  in- 
strument as  his  act  and  deed.^ 

(x)  Co.  Litt.  36  a. 

(y)  See  further  Doe  d.  Lloyd  v.  Bennett,  8  Car.  &  P.  124 ;  Tupper  v.  Foulkes, 
30  L.  J.  (C.  P.)  214. 

^  While  delivery  is  essential  to  the  legality  of  a  deed,  it  may  be  either 
actual  or  verbal ;  it  is  sufficient  if  there  be  an  intention  or  assent  of  the  mind 
on  the  part  of  the  grantor  to  treat  the  deed  as  his :  Stewart  v.  Eedditt,  3  Md. 
67  ;  McLure  v.  Colclough,  17  Ala.  89.  The  possession  of  the  deed  by  a  party 
claiming  under  the  grantee  is  evidence  of  delivery  to  such  grantee  until  the 
contrary'  is  shown :  Stewart  v.  Redditt,  3  Md.  67  ;  McMorris  v.  Crawford,  15  Ala. 
271;  Rushin  v.  Shields,  11  Ga.  636;  Dawson  v.  Hall,  2  Mich.  390;  Berry  v. 
Anderson,  22  Ind.  36 ;  Rhine  v.  Robinson,  27  Pa.  St.  30 ;  Firemen's  Ins.  Co.  r. 
McMillan,  29  Ala.  147  ;  Sadler  v.  Anderson,  17  Tex.  245 ;  Little  v.  Gibson,  39 
N.  H.  505 ;  Morris  v.  Henderson,  37  Miss.  492  ;  Black  v.  Shreve,  13  N.  J.  Eq. 
455;  Black  v.  Thornton,  30  Ga.  361,  31  lb.  641;  Benson  v.  Woolverton, 
15  N.  J.  Eq.  158 ;  Tuttle  v.  Turner,  28  Tex.  759 ;  Newlin  v.  Beard,  6  W. 
Va.  110;  Billings  v.  Stark,  15  Fla.  297;  Goodwin  v.  Ward,  6  Baxt 
(Tenn.)  107;  Roberts  v.  Swearingen,  8  Neb.  363;  Stewart  v.  Stewart,  50 
Wis.  445.  The  acknowledgment  and  recording  of  a  deed  are  sufficient 
to  warrant  the  presumption  of  a  legal  delivery,  and  as  the  clerk,  after 
he  has  recorded  it,  is  bound  to  return  it  to  the  grantee,  the  possession  of 
it  by  him  will  be  regarded  as  the  possession  of  the  grantee  :  Stewart  v.  Redditt, 
3  Md.  67.  See  Critchfield  1;.  Critchfield,  24  Pa.  St.  100 ;  Black  v.  Hoyt,  33 
Ohio  St.  203.  The  recording  of  a  deed  by  the  grantor  under  circumstances 
which  create  no  suspicion  of  fraud,  may  be  considered  evidence  of  delivery  : 

9 


7  ON    COXTEACTS    BY    DEED.  [lECT.  I. 

It  is  not  necessary  that  the  delivery  should  be  to  the 
person  who  is  to  take  the  benefit  of  the  deed.  The 
judgment  in  the  case  of  Doe  d.  Garnons  v.  Knight  (2), 
which  was  delivered  by  Sir  John  Bayley  after  a  curia 
advisari  vuU,  is  worthy  of  a  most  careful  perusal ;  the 
learning  relating  to  this  subject  will  be  found  there 
clearly  collected  and  discussed.  The  inference 
•-    ^      which  the  Court,  of  which  his  ^Lordship  was  the 

{z)  5  B.  &  C.  (11  E.  C.  L.  K.)  671.  See  Botcherby  v.  Lancaster,  1  A.  A.  E. 
(28  E.  C.  L.  K.)  77 ;  Doe  d.  Kichards  v.  Lewis,  20  L.  J.  (C.  P.)  177  ;  Fletcher 
f.  Fletcher,  4  Hare,  67. 

Buckley  v.  ButBngton,  5  McLean,  457.  It  is  at  most,  however,  pi-imd  facie 
evidence  of  delivery :  Welborn  v.  Weaver,  17  Ga.  267 ;  Kowell  v.  Ilayden, 
40  Me.  582 ;  Berkshire  Ins.  Co.  v.  Sturgis,  13  Gray.  177 ;  Boardman  v.  Dean, 
34  Pa.  St.  252 ;  Somers  v.  Pumphrey,  24  Ind.  231 ;  Jackson  v.  Cleveland,  15 
Mich.  94 ;  Kobinson  v.  Gould,  26  Iowa,  89 ;  Kerr  v.  Birnie,  25  Ark.  225 ; 
[which  may  be  rebutted :  Knolls  v.  Barnhart,  71  N.  Y.  474 ;  Watson  v.  Kyan, 
3  Tenn.  Ch.  40 ;  Union  Ins.  Co.  v.  Campbell,  95  111.  267.]  From  the  fact  of 
signing,  the  jury  may  presume  the  sealing  and  delivery,  although  there  be  no 
reference  to  sealing  in  the  body  of  the  writing,  if  there  be  a  seal  affixed  to  the 
name:  Miller  v.  Binder,  28  Pa.  St.  489.  The  delivery  of  a  deed  to  the  re- 
corder for  the  grantees  is  sufficient,  if  the  grantees  had  agreed  to  accept : 
Hoffman  v.  Mackall,  5  Ohio  St.  125 ;  Boody  v.  Davis,  20  N.  H.  140 ;  Moli- 
neaux  v.  Coburn,  6  Gray,  124 ;  Bensley  v.  Atwill,  12  Cal.  231 ;  Balbec  v. 
Donaldson,  2  Grant,  459 ;  Masterson  v.  Cheek,  23  111.  72 ;  Prettyman  v.  Good- 
rich, 23  111.  330 ;  Houfes  v.  Schultze,  2  111.  App.  196 ;  Young  v.  Stearns,  3  lb. 
498  ;  Sharp  r.  Jarrell,  66  Ind.  52 ;  Elsberry  r.  Boykin,  65  Ala.  336 ;  Moore  v. 
Giles,  49  Conn.  570 ;  Metcalfe  v.  Brandon,  60  Miss.  685.  When  a  deed  was 
executed,  handed  to  the  register,  and  recorded  without  the  knowledge  or 
assent  of  the  grantees,  after  which  the  grantor  took  and  kept  possession  of  it, 
it  was  held  that  in  the  absence  of  evidence  that  he  intended  this  to  constitute 
a  delivery,  it  was  not  his  deed:  Hayes  v.  Davis,  18  N.  H.  600.  [See  Knolls  v. 
Barnhart,  71  N.  Y.  474.]— s. 

A  deed  executed  and  acknowledged  by  a  commissioner  appointed  by  a  de- 
cree to  sell  and  convey  land  in  partition  proceedings  is  delivered  w  hen  the 
Court  confirms  his  report  of  sale  and  conveyance,  although  he  retains  manual 
jiossession  of  it :  Cocks  v.  Simmons,  57  Miss.  183.  The  intent  of  the  grantor  and 
graniee  that  what  was  done  should  operate  as  a  delivery  and  acceptance  of  the 
deed,  maj'  be  implied  from  snibsequent  admissions,  conduct,  and  circumstances, 
even  where  the  instrument  remains  in  the  hands  of  the  grantor :  Nichol  v. 
Davidson  County,  3  Tenn.  Ch.  547  ;  Snow  v.  Orleans,  126  Mass.  433;  Kuck- 
man  v.  Euckman,  32  N.  J.  Eq.  259;  Dukes  v.  Spangler,  35  Ohio  St.  119; 
Thatcher  v.  St.  Andrew's  Church,  37  Mich.  264.  The  effect  of  a  delivery  i? 
not  destroyed  by  a  subsequent  redelivery  to  the  grantor:  Otis  v.  Spencer,  102 
111.  622 ;  Rogers  v.  Rogers,  53  Wis.  36. 
10 


LECT.  I.]  ON    CONTRACTS    BY    DEED.  8 

organ,  there  drew  from  all  the  authorities  on  the  sub- 
ject was,  jQrst,  "  that  where  an  instrument  is  formally 
sealed  and  delivered,  and  there  is  nothing  to  qualify  the 
delivery  but  the  keeping  the  deed  in  the  hands  of  the 
executing  party,  nothing  to  show  that  he  did  not  intend 
it  to  operate  immediately,  that  it  is  a  valid  and  effectual 
deed  ;  and  tliat  delivery  to  the  party  who  is  to  take  by 
it,  or  any  other  person  for  his  use  is  not  essential ;"  sec- 
ondly, "  that  delivery  to  a  third  person  for  the  use  of  the 
party  in  wliose  favour  a  deed  is  made,  where  the  grantor 
parts  with  all  control  over  the  deed,  makes  the  deed 
effectual  from  the  instant  of  such  delivery."  " 

^  As  early  as  the  year  1809,  the  case  of  Belden  v.  Carter,  4  Day,  66,  was 
similarly  decided  in  Connecticut  upon  much  the  same  facts  as  in  Doe  v. 
Knight,  and  in  1814,  twelve  years  before  the  decision  of  that  case  (which  is 
also  reported  in  8  D  &  R.  348,  and  see  Exton  v.  Scott,  6  Sim.  31),  the  same 
conclusions  had  been  arrived  at,  upon  a  reviaw  of  nearly  the  same  authorities, 
in  the  case  of  Souverbye  v.  Arden,  1  John.  Ch.  240,  decided  by  Mr.  Chancellor 
Kent,  where  the  grantor  of  a  voluntary  deed  having  sworn  in  his  answer  to  a 
bill  filed  by  the  grantees,  "  that  he  believed  that  he  and  his  wife  sealed  the 
deed  in  the  presence  of  two  witnesses,  and  that  they  may  have  used  the 
formal  words  of  delivery,"  it  was  held  that  neither  the  subsequent  retention 
of  the  possession  of  the  deed  by  the  grantor,  nor  his  subsequent  declaration 
contrary  to  its  tenor,  could  destroy  its  efficacy :  Young  v.  Moore,  1  Strobhart, 
55  ;  and  it  is  well  settled  that  if  the  deed  has  ever  been  once  actually  delivered, 
the  retention  or  the  parting  with  its  possession  is  an  immaterial  fact :  Sorug- 
ham  V.  Wood,  15  Wend.  545 ;  Jaokson  v.  Dunlap,  1  Johns.  Cas.  114  ;  Brinckeroff 
V,  Lawrence,  2  Sand.  Ch.  406;  Roosevelt  v.  Carrow,  6  Barb.  100;  Jones  i-. 
Jones,  6  Conn.  Ill ;  Den  v.  Farlee,  21  N.  J.  L.  280 ;  Blight  v.  Schenck,  10  Pa. 
St.  285  ;  Farrar  v.  Bridges,  5  Humph.  411. 

But  upon  tlie  question  whether  there  has  ever  been  a  delivery,  the  posses- 
sion of  the  instrument  may  have  a  material  bearing.  Delivery  is,  to  a  cer- 
tain extent,  a  question  for  the  jury,  but  under  the  direction  of  the  Court ;  to 
what  extent  may  be  well  exemplified  by  the  case  of  Doe  v.  Knight,  which 
was  a  1  ejectment  upon  a  mortgage.  Wynne,  an  attorney,  who  had  been  in 
his  lifetime  the  owner  of  the  premises  in  question,  had  received  a  large  sum 
for  his  client  Garnons,  and  sent  word  to  him  that  he  had  misapplied  £i  0,000 
of  it,  but  that  he  would  make  him  secure.  Some  years  after  Wynne  wrote 
with  his  own  hand  a  mortgage  of  all  his  property  to  Garnons  to  secure  £10,- 
000,  brought  it  into  the  presence  of  his  niece,  signed  and  sealed  it,  said,  "  I  de- 
liver this  as  my  act  and  deed,"  and  then  took  it  away.  In  the  same  month 
ne  delivered  a  parcel  to  his  sister,  saying,  "  Take  this,  it  belongs  to  Mr.  Gar- 
nons."    Some  days  after,  he  asked  for  and  took  away  the  parcel,  and  in  a  tew 

11 


.  8  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

Before  quitting  the  subject  of  delivery,  it  is  right  to 
explain  the  distinction  between  a  deed,  ordinarily  so 

days  returned  it,  somewhat  reduced  in  bulk,  saying,  '*  Here,  put  this  by  " 
Some  months  after  this,  Wynne  died,  liaving  tirst  executed  a  second  mortgage 
of  all  his  property  to  another  person.  The  parcel  was  found  to  contain  the 
mortgage  which  the  niece  had  witnessed,  which  was  to  secure  £10,000, 
together  with  a  statement  of  the  account  between  Garnons  and  himself,  show- 
ing an  indebtedness  of  that  amount.  The  jury  were  told  that  if  the  delivery 
to  the  sister  was,  under  the  circumstances,  a  parting  with  the  possession  of 
the  deed,  and  of  the  power  and  control  over  it  for  the  benefit  of  Garnons, 
and  to  be  delivered  to  him  either  in  Wynne's  lifetime,  or  after  his  death, 
they  should  find  for  the  plaintifi',  but  that  if  it  was  merely  delivered  to  her 
for  safe  custody  as  the  depositary,  and  was  subject  to  his  future  control  and 
disposition,  they  should  find  for  the  defendant.  The  jury  having  found  for 
the  plaintiff.  Sir  John'  Bayley,  in  delivering  the  opinion  of  the  Court  refus- 
ing a  new  trial,  adverting  to  the  objection  that  the  conclusion  which  the  jury 
drew,  viz. :  that  the  sister  held  the  mortgage  free  from  the  control  of  her 
brother,  had  no  premises  to  support  it,  answered  it  by  saying  that  although 
the  sister  did  return  it,  yet  she  would  have  been  justified  had  she  refused. 
(See  to  the  same  effect  as  to  the  depositary  being  a  trustee  for  the  grantee : 
Belden  v.  Carter,  4  Day,  66.)  Two  questions,  therefore,  arose ;  first,  whether 
when  a  deed  is  duly  executed  and  formally  delivered  with  appropriate  words, 
but  retained  by  the  party  executing  it,  that  retention  will  obstruct  the  opera- 
tion of  the  deed,  which  question  was  answered  in  the  negative  ;  and  secondly, 
whether  if  delivery  for  such  party  be  essential,  a  delivery  to  a  third  person 
will  be  sufficient,  if  such  delivery  puts  the  instrument  out  of  the  power  and 
control  of  the  party  who  executed  it,  though  such  third  person  does  not  pass 
the  deed  to  the  party  benefited  until  after  the  death  of  the  grantor.  This 
question  was  answered  in  the  affirmative ;  and  both  of  these  propositions  are 
perfectly  settled  law  on  both  sides  of  the  Atlantic:  Belden  v.  Carter,  4  Day, 
66;  Johnson  v.  Ruggles,  13  Johns.  288;  Brown  v.  Brown,  1  W.  &  M.  325; 
Bryan  v.  Wash,  2  Gil.  557 ;  Merrills  v.  Swift,  18  Conn.  257 ;  and  see  many 
cases  collected  in  the  opinion  of  the  Court  in  Hulick  v.  Scovil,  4  Gil.  159. 

The  grantor's  placing  the  deed  upon  record — his  putting  it  in  the  post- 
office  directed  to  the  grantee — his  bringing  an  action  for  tlie  consideration- 
money — the  grantee's  having  possession  of  the  deed — or  of  the  premises  con- 
sistently with  the  tenor  of  the  deed — constitutes  primd  facie  evidence,  upon 
which  the  jury  may  presume  that  the  deed  was  delivered :  Porter  v.  Cole,  4 
^le.  25 ;  Ward  v.  Lewis,  4  Pick.  520 ;  Mills  v.  Gore,  20  lb.  28 ;  Games  v.  Stiles, 
14  Pet.  322;  Collins  v.  Parker,  1  Strobh.  25;  Houston  v.  Staunton,  11  Ala. 
412;  M'Kinneyr.  Khoads,  5  Watts,  343;  Rigler  v.  Cloud,  14  Pa.  St.  364; 
Blight  V.  Schenck,  10  lb.  285 ,  Gardner  i;.  Collins,  3  Mason,  401.  So,  where  a 
deed  was  left  in  the  hands  of  the  magistrate  before  whom  it  was  acknowledged, 
and  was  afterwards  taken  away  by  the  brother  of  the  grantee  for  him,  this 
was  held  sufficient  evidence  to  go  to  the  jury,  from  which  they  might  presume 
delivery :  Arrison  v.  Harmstead,  2  Pa.  St.  191 ;  while,  on  the  other  hanH^  if 
the  deed  were  put  into  the  post-office,  directed  net  to  the  grantee  no'  his 

12 


LECT.  I  ]  ON   CONTRACTS   BY    DEED.  8 

termed,  and  an  escrow  (a).  An  escrow  is  a  deed  deliv- 
ered conditionally  to  a  third  person,  to  be  delivered  to 

(a)  Shepp.  Touch.  58. 

agent,  but  to  an  agent  of  the  grantor,  it  would  be  error  to  leave  the  question 
of  delivery  to  the  jurv,  as  there  would  be  no  evidence  from  which  delivery 
could  be  presumed :  Elsey  v.  Metcalf,  1  Denio,  323  ;  White  v.  Baily,  14  Conn, 
271.  So,  where  there  were  neither  acts  done  nor  words  spoken  from  which  a 
delivery  could  be  inferred,  and  the  possession  of  the  deed  by  the  party  seeking 
to  take  advantage  of  it  was  accounted  for  by  his  having  taken  possession  of  all 
the  papers  of  the  grantor  after  his  death,  it  was  held  error  to  leave  the  ques- 
tion of  delivery  to  the  jury:  Clayton  v.  Liverman,  4  Dev.  &  Bat.  238. 

It  was  suggested  by  the  English  editor  that  the  qualifications  adopted  in 
Doe  V.  Knight  had  been  overlooked  by  the  more  recent  authorities,  and  that 
the  doctrine  of  that  case  has  been  of  late  more  broadly  laid  down.  But  it  is 
believed  that  they  do  not  either  narrow  or  enlarge  the  rules  adopted  in  that 
case,  being  (with  but  one  exception,  Grudgeon  v.  Gerrard)  cases  of  voluntary 
settlements  in  favor  of  near  relatives,  or  the  like,  sought  to  be  enforced  in 
equity,  as  to  which,  it  has  been  repeatedly  held,  that  Courts  will  go  farther  in 
the  presumption  of  a  delivery  than  in  ordinary  cases  of  conveyance :  Bryan  i; 
Wash,  2  Gilm.  557 ;  Brown  v.  Brown,  1  W.  &  M.  325 ;  Souverbye  v,  Arden, 
&c.  In  Fletcher  v.  Fletcher,  4  Hare,  67,  cited  by  him,  a  testator  executed  a 
voluntary  covenant  with  trustees,  that  in  case  his  two  natural  sons  should  sur- 
vive him,  his  executor  should  pay  to  the  trustees  £GO,000  for  such  of  the  sons 
as  should  be  living  at  the  time  of  his  death.  This  instrument,  which  pur- 
ported to  be  regularly  executed,  was  found  among  the  testator's  papers  some 
years  after  his  death,  and  upon  a  bill  filed  by  the  surviving  son  to  have  the 
covenant  enforced,  the  stress  of  the  argument  was  laid  upon  the  deed  being 
voluntary,  executory,  and  testamentary,  and  as  such  revoked  by  the  subsequent 
will ;  and  Vice-Chancellor  Wigram,  after  answering  these  objections,  said, 
"The  only  other  question  arises  from  the  circumstances  of  the  instrument  hav- 
ing been  kept  in  the  possession  of  the  party  ;  does  that  affect  its  legal  validity  ? 
In  the  case  of  Dillon  v.  Coppin,  4  Myl.  &  Cr.  6G0,  I  had  occasion  to  consider 
that  subject,  and  I  took  pains  to  collect  the  cases  upon  it.  The  case  of  Doe  v. 
Knight  shows,  that  if  an  instrument  is  sealed  and  delivered,  the  retainer  of 
it  by  the  party  in  his  possession  does  not  prevent  it  from  taking  effect.  No 
doubt  the  intention  of  the  parties  is  often  disappointed  by  holding  them  to  be 
.bound  by  deeds  which  they  have  kept  back,  but  such  unquestionably  is  the 
law."  The  cases  thus  referred  to  were  Barlow  v.  Heneage,  Prec.  Ch.  211; 
Lady  Hudson's  Case,  lb.  235 ;  Clavering  v.  Clavering,  2  Vernon,  473,  Dom. 
Proc,  1  Bro.  P.  C.  122;  Broughton  v.  Broughton,  1  Atkyns,  625;  Doe  v. 
Knight,  Sear  v.  Ashwell,  3  Swans.  411 ;  Worrall  v.  Jacob,  3  Meriv.  256;  and 
Exton  V.  Scott,  6  Sim.  31 ;  the  first  four  of  which  were  all  cited  and  reviewed 
in  Doe  v.  Knight,  and  the  language  used  in  that  case  by  Sir  John  Bayley,  and 
q  loted  supra,  was  cited  by  Mr.  ^Vigram  at  length. 

In  looking  at  the  cases  in  equity  upon  this  heaf],  much  will  be  found  to 
turn  upon  the  nature  of  the  instrument,  and  the  purpose  for  which  it  was  in- 
tended :  Bryan  v.    Wash,  2  Gilm.  557 ;  Souverbye  v.  Arden,  &c.     Thus,  in 

13 


8  ON    CONTRACTS    BY    DEED.  [lECT.  I, 

tlie  person  for  whose  benefit  it  purports  to  be,  on  some 
condition  or  other.     If  that  condition  be  performed,  it 


Ward  V.  Lamb,  Prec.  Ch.  182,  the  Court  refused  to  decree  the  giving  up  of  a 
voUintary  bond  made  to  a  daughter,  to  piotect  the  obligor  from  taxation, 
and  retained  by  hhi ;  and  in  Cecil  v.  Butcher,  2  Jac.  &  W.  573,  the  Court  re- 
fused  to  enforce  a  conveyance  made  (and  retained)  by  a  father  in  favor  of  a 
son  in  order  to  give  him  a  qualification  to  kill  game,  and  the  Master  of  the 
Rolls,  after  viewing  the  authorities,  said,  "  They  have  not  depended  solely 
upon  the  question  whether  the  party  has  made  a  voluntary  deed ;  not  merely 
upon  whether  having  made  it,  he  keejjs  it  in  his  own  possession ;  not  merely 
upon  whether  it  is  made  for  a  particular  purpose ;  but  when  all  these  cir- 
cumstances are  connected  together,  when  it  is  voluntary,  when  it  is  made 
for  a  purpose  that  has  never  been  completed,  and  when  it  has  never  been 
parted  with,  then  the  courts  of  equity  have  been  in  the  habit  of  considering  it 
as  an  imperfect  instrument :"  Ward  v.  AVard,  2  Hayw.  226 ;  Jackson  v. 
Inabnit,  2  Hill  Ch.  41 1 ;  Kirk  v.  Turner,  1  Dev.  Ch.  14. 

The  acceptance  by  the  grantee  of  a  deed  is  as  essential  to  its  validity  as  its 
delivery  by  the  grantor.  It  rests,  however,  upon  much  stronger  presumption 
where  the  deed  purports  to  confer  a  benefit,  and  an  actual  acceptance  need  not 
then  be  shown  in  the  first  instance,  either  by  the  grantee  himself,  or  any  one 
beneficially  interested  under  it :  Butler  and  Baker's  Case,  3  Co.  26  b  ;  Thomp- 
son V.  Leach,  2  Ventr.  202 ;  Hatch  v.  Hatch,  9  Mass.  307 ;  Belden  v.  Carter,  4 
Day,  66;  Church  v.  Gilman,  lo  Wend.  656;  Reed  v.  Marble,  10  Paige,  409; 
Tate  V.  Tate,  1  Dev.  &  Bat.  (Eq.)  22 ;  Halsey  v.  Whitney,  4  Mason,  206.  The 
presumption  is,  of  course,  however,  liable  to  be  rebutted,  and  it  will  be  nearly, 
if  not  quite,  overthrown  in  cases  where  the  acceptance  of  the  deed  confers  no 
benefit,  or  inflicts  a  positive  harm  upon  the  other  party :  Jackson  v.  Bodle, 
20  Johns.  184 ;  Camp  v.  Camp,  5  Conn.  300 ;  Renfro  v.  Harrison,  10  Mo. 
411. 

How  far  the  relation  back  of  the  subsequent  acceptance  to  the  original 
delivery  will  aflfect  the  attaching  of  intermediate  interests,  is  a  question  of 
some  practical  importance.  In  Wilt  v.  Franklin,  1  Binn.  502,  the  rights 
arising  under  an  execution  levied  between  the  period  of  delivery  of  an  assign- 
ment for  creditors,  and  assent  by  the  grantee — a  space  of  four  days, — were 
postponed  to  those  arising  under  the  deed :  Men-ills  v.  Swift,  18  Conn.  257,  was 
very  similar  to  Doe  v.  Knight.  A  debtor  being  in  failing  circumstances  exe- 
cuted a  mortgage,  and  delivered  it  to  one  for  the  use  of  the  mortgagee.  The 
mortgage  was  immediatelv  recorded,  and,  some  time  after,  w^as  assented  to  by 
the  mortgagee,  and  it  wa.s  held  to  be  entitled  to  a  preference  over  an  interme- 
diate attachment.  In  Harrison  v.  The  Trustees  of  Phillips'  Academy,  12  Mass. 
455,  where  an  embarrassed  debtor  made  a  conveyance  to  his  sureties  by  way  of 
precautionary  indemnity,  of  which  they  were  ignorant  till  a  month  afterward, 
when  it  was  assented  to  by  them,  it  was  said  by  Parker,  C.  J.,  that  creditors 
might  have  arrested  the  transaction  bv  an  execution  levied  in  the  intermediate 
time;  but  there  was  a  question  of  fraud  in  the  case, evidence  of  which  would, 
it  is  conceived,  always  invalidate  such  a  transaction;  and  the  remarks  on  Wilt 
V.  Franklin  in  M'Kinney  v.  Rlioads,  5  Watts,  343,  were  directed  to  the  want  of 
14 


LECT.  I.]  ON    CONTRACTS    BY    DEED.  8 

becomes  an  absolute  deed ;  till  then  it  continues  an 
escrow,  and,  if  the  condition  never  be  performed,  it 
never  becomes  a  deed  at  all.     Thus,  at  a  meeting  for 


delivery  in  that  case,  apart  from  which,  it  is  said,  that  tJie  decision  is  perfectly 
correcl.  Where,  moreover,  a  deed  is  delivered  as  an  e-scroic,  although,  as  is 
Btated  in  the  text,  it  relates  back  to  the  time  of  the  original  delivery :  Foster 
V.  Mansfield,  3  Met.  412;  Ruggles  v.  Lawson,  13  Johns.  2S5;  yet  it  must  be 
borne  in  mind  that  this  is  for  certain  purposes  only — that  this  fiction  is  re- 
sorted to  in  cases  of  necessity,  to  prevent  injury  and  uphold  the  deed;  as,  for 
instance,  where  a  feme  sole  delivers  a  deed  as  an  escrow,  and  marries  before 
the  condition  is  performed,  it  is  her  deed  from  the  first  delivery,  as  otherwise 
her  marriage  v.'ould  defeat  it:  Perkins,  139-140;  "for  in  such  case  from  neces- 
sity, and  ul  res  mngis  valeat  quam  pereat,  to  this  intent  by  fiction  of  law,  it  shall 
be  a  deed  ab  initio,  and  yet  in  truth  it  was  not  her  deed  until  the  second  de- 
livery :"  Butler  and  Baker's  case,  3  Co.  36  a.  Hence,  in  accordance  with  the 
maxim,  in  fictione  juris  semper  equiias  exislat,  such  relation  back  will  not  operate 
to  defeat  the  rights  of  third  persons  attaching  in  the  interval :  Frost  v.  Beek- 
man,  1  Johns.  Ch.  288 ;  Green  v.  Putnam,  I  Barb.  504 ;  Lewis  r.  Taylor,  liil. 
Ch.  179;  Carr  v.  Iloxie,  5  Mason,  60 ;  Merrills  r.  Swift,  sw/ira ;  and  thus  in 
Jackson  v.  Rowland,  6  Wend.  666,  where  a  deed  was  delivered  as  an  escrow, 
and  previously  to  its  subsequent  absolute  delivery  a  judgment  was  obtained 
against  the  grantor,  under  which  the  land  was  sold,  it  was  held  that  the  pur- 
chaser under  this  judgment  took  a  good  title  to  the  land ;  and  so  in  Shirley's 
Lessee  v.  Ayres,  14  Ohio,  307. 

W^here  a  deed  is  rejected  by  the  grantee,  the  title  revests  in  the  grantor,  pro- 
vided the  dissent  be  made  by  the  party  really  in  interest.  Thus,  where  a  con- 
veyance was  to  A.  to  the  use  of  B.,  A.'s  dissent  was  not  allowed  to  defeat  the 
use  limited  to  B. :  Gorton's  case,  2  Roll.  Ab.  7S9,  pi.  7.  In  these  cases  of  re- 
iection  the  question  also  arises  as  to  intermediate  interests  and  estates  created 
by  the  deed.  In  Thompson  v.  Leach,  2  Ventr.  198,  it  was  finally  held  in  the 
House  of  Lords,  reversing  the  judgments  below,  that  a  deed  of  surrender  by 
tenant  for  life  to  a  remainderman,  barred  intermediate  contingent  remainders, 
though  the  grantee  rejected  the  deed  when  he  knew  of  it ;  and  in  Read  v.  Rob- 
inson, 6  W.  &  S.  329,  a  debtor  executed  a  general  assignment  for  the  benefit  of 
his  creditors,  and  delivered  it  to  one  of  his  sons,  with  instructions  to  take  it  to 
one  Ward,  who  had  been  making  out  his  father's  accounts.  Ward  took  the 
deed  to  the  assignee,  who  refused  to  receive  it,  and  said  he  would  have  notli- 
ing  to  do  with  it.  An  assignee  was  then  appointed  by  the  Court,  who  brought 
trover  against  the  executor  of  the  grantor's  will,  executed  after  the  assignment. 
The  Court  below  ordered  a  nonsuit,  on  the  ground  of  the  refusal  of  the  as- 
signee ;  but  this  judgment  Avas  reversed  by  the  Supreme  Court,  which  held,  that 
although  by  the  rejection  the  title  might  have  been  remitted  to  the  grantor  in 
case  the  grantee  were  the  party  beneficially  interested,  yet  that  the  instrument 
being  a  trust  for  creditors,  the  latter  were  the  parties  in  interest,  and  that  by 
the  transmission  of  the  deed  for  acceptance  to  the  assignee,  the  title  in- 
stantly passed  at  law,  and  it  could  not  be  divested  by  the  subsequent  disagree- 

15 


8  ON    CONTRACTS   BY    DEED.  [lECT.  I. 

executing  a  composition  deed  for  performance  of  which 
the  defendant  was  to  be  surety,  it  was  signed  and  sealed 
by  him ;  but  it  had  been  previously  agreed  that  the 
deed  should  not  be  operative  unless  all  the  creditors 
r^Q-i  sealed  it,  and  it  was  then  delivered  "'to  one  of 
the  creditors,  in  order  that  he  might  get  it 
executed  by  the  others.  This  he  failed  to  effect,  and  in 
an  action  against  the  defendant  the  deed  was  held  to  be 
a  mere  escrow  (b).  And  even  where  a  subscribing  wit- 
ness to  a  bond  stated  that  it  was  attested,  sealed,  and 
delivered  in  the  usual  way,  no  other  words  than  those 
which  are  usual  on  the  execution  of  a  bond  being  used 
by  the  defendant  when  he  executed  the  instrument,  but 
that  before  and  at  the  time  of  the  execution  it  was 
agreed  that  it  should  remain  in  his  (the  subscribing 
witness's)  hands,  until  the  death  of  Lord  Stair,  and  until 
certain  promissory  notes  were  given  up,  and  that  the 
bond  was  placed  in  his  hands  upon  that  condition,  the 
Court  held  that  it  was  a  question  of  fiict  upon  the  whole 
evidence  whether  the  bond  was  delivered  as  a  deed  to 
take  effect  from  the  moment  of  delivery,  or  whether  it 
was  delivered  upon  condition  that  it  was  not  to  operate 
as  a  deed  until  the  death  of  Lord  Stair,  and  until  the 

(6)  Johnson  v.  Baker,  4  B.  «&  Aid,  (6  E.  C.  L.  E.)  440. 


ment  by  the  assignee;  thus  showing,  as  was  said  by  the  Chief  Justice,  in 
speaking  of  Thompson  v.  Leach,  "that  intermediate  interests  may  fasten  on  the 
title,  which  it  is  not  in  the  power  of  the  grantee's  disagreement  to  unclasp." 

It  has  been  suggested  by  Professor  Greenleaf,  in  his  edition  of  Cruise  on 
Real  Property  (tit.  xxxii,  ch.  1,  ^  25,  note),  that  Thompson  v.  Leach  was  not 
the  case  of  the  grant  of  an  estate  from  the  absolute  owner  to  a  stranger  who 
had  no  previous  interest  in  it,  but  it  was  the  annihilation  of  a  particular  estate 
in  favor  of  a  person  to  whom,  on  the  termination  of  that  estate,  at  that  time 
by  what  mode  soever,  the  whole  property  would  belong  by  its  original  limi- 
tation, and  that  the  case  of  Read  v.  Robinson  was  rather  decided  upon  a  local 
statute,  authorizing  the  Court,  in  case  of  renunciation  or  refusal  of  a  trustee, 
to  appoint  a  new  one  in  his  place.  The  Court  did  not,  however,  rest  its  de- 
cision wholly  on  that  ground. — B. 

16 


LECT.  I.]  ON   CONTKACTS   BY    DEED.  9 

notes  were  delivered  up  (c).  At  a  new  trial  of  the  case, 
the  Lord  Chief  Justice,  Lord  Tenterden,  told  the  jury 
that  if  the  instrument  was  delivered  as  the  deed  of  the 
defendant  binding  on  him  at  the  time,  although  it  was 
delivered  on  the  faith  and  confidence  which  he  reposed 
in  the  attesting  witness  (who  was  his  *attorney),  p-^tirv-i 
that  he  would  not  part  with  it  until  the  death  of 
Lord  Stair,  and  until  the  notes  were  delivered  up,  it 
immediately  became  the  defendant's  deed.  And  al- 
though the  witness  in  fact  parted  with  it  before  Lord 
Stair's  death,  and  before  the  delivery  up  of  the  notes,  in 
violation  of  the  trust  reposed  in  him,  it  was  still  the 
defendant's  deed.  But  if  the  delivery  itself  at  the  ti7ne 
was  conditional,  so  as  not  to  constitute  any  present  obli- 
gation, it  was  an  escrow  or  writing  merely,  and  not  a 
deed,  and  the  condition  of  the  delivery  having  been 
broken  it  had  never  become  the  deed  of  the  defendant. 
But  in  order  to  make  the  delivery  conditional,  it  was 
not  necessary  that  any  express  words  should  be  used  at 
the  time ;  the  conclusion  was  to  be  drawn  from  all  the 
circumstances.  It  obviated  all  question  as  to  the  inten- 
t^ion  of  the  party,  if  at  the  time  of  delivery  he  ex- 
pressly declared  that  he  delivered  it  as  an  escrow ;  but 
that  was  not  essential  to  make  it  an  escrow.  And,  there- 
fore, where  a  deed  executed  by  one  party  is  sent  to  the 
agent  of  the  other  in  a  letter  explaining  that  it  is 
executed  only  on  condition  of  a  counterpart  being 
executed  by  the  latter,  such  evidence  has  been  con- 
sidered sufficient  to  show  that  it  was  sent  only  as  an 
escrow  to  take  effect  after  execution  of  the  counter- 
part {(I). 

(c)  Murray  t-.  E.  of  Stair,  2  B.  &  C.  (9  E.  C.  L.  E.)  82;  Xenos  v.  Wick- 
ham,  33  L.  J.  (C.  P.)  13,  (Ex  (;h.) ;  13  C.  B.  N.  S.  (106  E.  C.  L.  K.)  435;  L. 
R.  2  H.  L.  296 ;  36  L.  J.  (C.  P.)  313. 

(d)  Furness  v.  Meek,  27  L.  J.  (Ex.)  34.  See  Millership  v.  Brookes,  5  H.  & 
N.  797 ;  29  L.  J.  (Ex.)  369. 

2  17 


10  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

This  conditional  delivery  must  be  to  some  third 
r*1 1 1  *P^^so^  j  ^or,  if  it  were  to  the  party  himself  who  is 
to  be  benefited  the  deed  would  become  absolute, 
though  the  party  delivering  were  to  say  in  express 
terms  that  he  intended  it  to  be  conditional  only ;  for  it 
is  impossible  by  words  to  get  rid  of  the  legal  operation 
of  the  delivery  (e) ;  and,  therefore,  where  the  defendant 
in  debt  on  a  bond  endeavoured  to  set  up  a  delivery  as 
an  escrow  to  the  obligee  himself,  the  Court  thought  that 
the  plea  was  so  clearly  bad,  that  they  would  not  hear 
any  argument  upon  the  subject.  But  the  delivery  to 
the  solicitor  of  the  grantee  of  an  instrument  executed  by 
the  grantor,  will  not  convert  the  instrument  from  an 
escrow  into  a  deed,  provided  the  delivery  is  of  a  charac- 
ter negativing  its  being  a  delivery  to  the  grantee  (/). 
Although,  however,  where  the  deed  is  delivered  to  a 
third  person  as  an  escrow,  the  delivery  is,  as  1  said,  con- 
ditional ;  yet  when  the  condition  has  been  performed,  it 
becomes  absolute  and  takes  effect,  not  from  the  date  of 
performing  the  condition,  but  from  the  date  of  the 
original  delivery ;  so  much  so,  that  it  has  been  held, 
that  where  a  bond  was  delivered  upon  condition,  and 
the  obligor  and  obligee  were  both  dead  before  the  condi- 
tion was  performed,  yet,  on  that  event  happening,  it  be- 
came the  deed  of  the  deceased  obligor,  so  as  to  create  a 
charge  upon  his  assets  as  against  his  representatives  (g), 
P^.-l  c)-]  *It  is  therefore  clear  that  in  order  to  make  a 
writing  sealed  and  delivered  an  escrow  merely,  it 
is  not  necessary  that  express  words  should  be  used. 
You  are  to  look  at  all  the  facts  attending  the  execution, 
and  to  all  that  took  place  at  the  time,  and,  therefore, 
although  it  be  in  form  an  absolute  delivery,  if  it  can 

(e)  Holford  r.  Parker,  Hob.  24G  ;  and  Co.  Litt.  36  a. 

(/)  Watkins  V.  Nash,  L.  R.  20  Eq.  2G2;  44  L.  J.  (Cli.)  505. 

{y)  See  Graham  v.  Graham,  1  Ves.  jun.  272 ;  Froset  v.  Walsh,  Bridg.  51.    ■ 

18 


LECT.  I.]  OX   CONTRACTS   BY   DEED.  12 

reasonably  be  inferred  that  the  writing  was  not  to  take 
effect  as  a  deed  till  a  certain  condition  should  be  per- 
formed, it  will  operate  as  an  escrow  {h.y 

(A)  Bowker  v.  Burdekin,  11  M.  &  W.  128;  Gudgen  v.  Besset,  26  L.  J.  (Q. 
B.)  36 ;  6  E.  &  B.  (88  E.  C.  L.  R.)  986 ;  See  Pyra  v.  Campbell,  25  L.  J.  (Q.  B.) 
277  ;  6  E  &  B.  (88  E.  C.  L.  R.)  370 ;  Watkins  v.  Nash,  supra. 

^  The  point  decided  in  Bowker  i'.  Burdekin  was,  that  a  deed  which  was 
executed  as  an  absolute  conveyance,  would  not  the  less  l)e  an  act  of  bank- 
ruptcy, becau<«.<,  on  looking  at  the  form  of  the  deed,  the  conclusion  might  pos- 
sibly be  como  »o  that  the  parties  did  not  contemplate  that  the  deed  should 
operate  as  an  &(.t  of  bankruptcy  unless  tlie  whole  partnership  effects  were  con- 
veyed. The  remark  cited  supra  was  said  by  Baron  Parke  to  be  the  result  of 
tlie  cases  of  Johnson  v.  Baker,  4  B.  &  Al.  (6  E.  C.  L.  R.)  440 ;  and  ^Murray  r. 
The  Earl  of  Stair,  2  B.  &  C.  (9  E.  C.  L.  R.)  82,  in  both  of  which  cases  the  in- 
strument was  not  delivered  to  the  party  interested,  but  left  with  a  stranger ; 
and  it  must  not  be  inferred,  from  the  remark  in  Bowker  v.  Burdekin,  that  a  deed 
purporting  to  be  absolute,  and  delivered  to  a  party,  can  by  parol  evidence  be 
shown  to  have  been  conditional,  as  the  contrary  was  expressly  held  in  Ward  v. 
Lewis,  4  Pick.  520,  where  an  insolvent  debtor  having  executed  an  assignment 
for  the  benefit  of  his  creditors,  which  was  found  in  the  hands  of  the  assignee 
it  was  held  that  the  deed  could  not  operate  as  an  escrow,  because  the  primd 
facie  evidence  was  that  it  was  delivered  to  the  party,  and  that  parol  evidence 
was  inadmissible  to  show  that  the  assignment  was  meant  to  take  effect  only 
upon  the  assent  of  the  majority  of  the  creditors. — R. 

A  deed  can  never  be  delivered  to  the  grantee  himself  as  an  escrow;  if  in- 
tended to  operate  as  such,  it  must  be  delivered  to  a  third  person  for  him : 
Jordan  v.  Pollock,  14  Ga.  145;  Firemen's  Ins.  Co.  v.  M'Millan,  29  Ala.  147  ; 
Thoraason  v.  Dill,  30  Ala.  444;  Duncan  i-.  Pope,  47  Ga.  445.  If  delivered  to 
the  grantee,  no  matter  what  may  be  the  form  of  the  words  accompanying  the 
act,  the  delivery  will  be  absolute:  Dawson  v.  Hall,  2  Mich.  390;  [Williams  v. 
Iliggins,  69  Ala.  517.  This  rule  does  not  apply  to  deeds  which  upon  their  face 
import  that  something  more  is  to  be  done  besides  delivery  to  make  them  com- 
petent and  perfect  contracts  according  to  the  intention  of  the  parties:  Wend- 
linger  v.  Smith,  75  Va.  309.]  It  is  not  admissible  to  show,  by  parol  evidence, 
that  a  deed  was  delivered  to  the  party,  on  any  condition  contrary  to  the  terms 
of  the  instrument :  Worrall  v.  Munn,  1  Seld.  239 ;  Warren  v.  Miller,  38  Me. 
108;  Black  r.  Shreve,  13  N.  J.  Eq.  455;  Braman  v.  Bingham,  26  N.  Y.  4S3. 
[But  the  manual  delivery  of  a  deed  will  not  be  regarded  as  a  full  and  com- 
plete delivery  when  it  is  mutually  understood  at  the  time  between  grantor  and 
grantee  that  such  deed  is  not  to  become  operative  until  some  future  event : 
Arthur  v.  Anderson,  9  So.  Car.  234;  Eraser  v.  Davie,  11  lb.  56.]  An  uncon- 
ditional delivery  of  a  deed  to  a  third  person  for  the  use  of  the  grantor,  and 
the  acceptance  implied  by  bringing  suit  upon  it,  will  constitute  a  sufficient  de- 
livery, and  the  acceptance  may  be  presumed  from  the  beneficial  nature  of  the 
transaction:  Tibbals  r.  Jacobs,  31  Conn.  423 ;  Guard  v.  Bradley,  7  Ind.  600; 
Wall  V.  Wall,  30  Miss.  91;  Stewart  v.  AVeed,  11  Ind,  92;  Jones  v.  Swayze, 

19 


12  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

Such,  then,  being  the  essentials  of  a  deed — writing^ 
on  paper  or  parchment,  sea/m^,  and  delivery — it  is  right 
to  add,  that,  for  the  sake  of  convenience,  deeds  are 
divided  into  two  classes.  Deeds  Poll,  and  Indentures,  a 
Deed  Poll  being  made  by  one  party  only,  an  Indenture 
between  two  or  more  parties  (i).  The  names  indeed  of 
Deed  Poll  and  Indenture  were,  as  you  probably  all 
know,  derived  from  the  circumstance  that  the  former 

(i)  Co.  Litt.  35  b. ;  Shepp.  Touch.  60.  Williams,  Eeal  Property,  p.  156, 
14th  ed. 

42  N.  J.  L.  279 ;  Campbell  v.  Kuhn,  45  Mich.  512.  To  make  the  delivery 
of  a  deed  effectual  the  grantor  must  part  with  all  control.  He  cannot 
reserve  to  himself  the  power  of  recalling  it;  if  he  does  so,  the  delivery  is 
ineffectual:  Cook  u.  Brown,  34  N.  H.  460;  Brown  u.  Austen,  35  Barb.  341. 
Any  act  or  words,  by  which  a  grantor  indicates  an  intention  to  deliver  a  deed 
is  primd  facie  a  delivery :  Mallett  v.  Page,  8  Ind.  364 ;  Dearmond  v.  Dearmond, 
10  lb.  191 ;  Stevens  v.  Hatch,  6  Minn.  64.  If  a  bond  intended  as  an  escrow  be 
delivered  by  the  obligor  to  the  obligee,  on  an  agreement  that  the  latter  will 
hand  it  to  a  third  persofi  as  depository,  it  will  operate  as  an  escrow :  Brown 
V.  Reynolds,  5  Sneed,  639.  So  tlie  delivery  of  the  deed  to  the  grantee  for 
examination  is  no  delivery:  Graves  v.  Dudley,  20  N.  Y.  76.  So  to  await 
execution  by  another  party  :  Brackett  v.  Barney,  28  lb.  333.  For  other  cases 
on  tlie  subject  of  escrows  see  Chandler  v.  Chandler,  21  Ark.  95 ;  Dyson  v. 
Bradshaw,  23  Cal.  528 ;  Berry  v.  Anderson,  22  Ind.  36 ;  Loubat  v.  Kipp,  9  Fla, 
60;  Hathaway  v.  Payne,  34  N.  Y.  92;  Fitch  v.  Bunch,  30  Cal.  208;  Resor  v. 
Oliio  Co ,  17  Ohio  St.  139 ;  Abbott  v.  ALsdorf,  19  Mich.  157 ;  Demesmey  v. 
Gravelin,  56  111.  93 ;  Stanton  v.  Miller,  65  Barb.  58 ;  Roberts  v.  Mullenix,  10 
Kan.  22.— s. 

Even  in  the  case  t>f  an  ♦'scrow  tliere  must  be  an  actual  delivery — the  grantor 
must  part  with  control  <)f  the  deed :  Campbell  v.  Thomas,  42  Wis.  437. 
Although  in  the  case  of  in  escrow  the  estate  does  not  pass  until  the  second 
delivery,  yet,  sometimes,  to  prevent  a  failure  of  justice  (as  wliere  the  grantor 
dies  before  the  second  delivery),  the  deed  will  be  held  to  relate  back  to  the 
first  delivery :  Harkreader  v.  Clayton,  56  Miss.  383  ;  < 'rooks  v.  Crooks,  34  Ohio 
St.  610.  A  third  person  who,  according  to  the  grantor's  contract,  has  tendered 
a  deed  which  the  grantee  has  refused  to  accept,  thenceforth  holds  the  same 
as  the  depository  of  both  parties,  according  to  their  respective  rights; 
Adams  v.  Smilie,  50  Vt.  1.  A  fraudulent  delivery  by  tlie  depositary  of  a  deed 
deposited  as  an  escrow  will  not  operate  to  pass  the  title  even  to  a  subsequent 
iona /de  purchaser :  Cotton  v.  Gregory,  10  Neb.  125;  Clements  v.  Hood,  57 
Ala.  459;  Cressinger  v.  Dessenbury,  42  Mich.  580;  Robbins  v.  Magee,  76  Ind. 
381  ;  White  v.  Core,  20  W.  Va.  272. 

^  Or,  of  course,  printing :  2  Blackstone,  *297  ;  Leake,  Digest  of  the  Law  of 
Contracts,  135. 

20 


LECT.  I.]       ON  CONTRACTS  BY  DEED.  12 

was  shaved  or  polled,  as  the  old  expression  was,  smooth 
at  the  edges,  whereas  the  latter  was  cut  or  indented  with 
teeth  like  a  saw ;  for,  in  the  very  old  times,  when  deeds 
were  short,  it  was  the  custom  to  write  both  parts  on  the 
same  skin  of  ^parchment,  and  to  write  a  word  in  p^^  o-i 
large  letters  between  the  parts ;  and  then,  this 
word  being  cut  through  saw  fashion,  each  party  took 
away  half  of  it ;  and  if  it  became  necessary  to  establish 
the  identity  of  the  instruments  at  a  future  time,  they 
could  do  so  by  fitting  them  together,  whereupon  the 
word  became  legible  (k).  However,  this,  though  the 
origin  of  the  word  indenture,  has  become  a  mere 
form ;  and  though,  as  you  are  all  aware,  such  instru- 
ments are  still  indented  by  nicking  the  edge  of  the 
parchment,  not  teethwise,  but  in  an  undulating  line, 
that  is  a  mere  form,  and  might  (as  it  was  said)  (/)  be 
done  in  Court  during  the  progress  of  a  trial  if  it  had 
been  forgotten  till  then.  Now,  however,  it  is  expressly  en- 
acted (m),  "  that  a  deed  executed  after  the  1st  day  of  Octo- 
ber, 1845,  purporting  to  be  an  indenture,  shall  have  the 
effect  of  an  indenture,  although  not  actually  indented." 

There  are  one  or  two  peculiarities  of  contracts  made 
by  deed,  which  as  they  apply  to  all  contracts  so  made, 
this  is  the  proper  place  to  notice. 

In  the  first  place,  a  contract  by  deed  requires  no  con- 
sideration to  support  it  (ri) ;  or  perhaps  it  might  be  more 
correct  to  say,  as  a  general  proposition,  that  the  law  con- 
clusively presumes  that  it  is  made  *upon  a  good 
and   suflicient  consideration  (o).^      The  import-    ^      -■ 

{k)  Co.  Litt.  229  a ;  2  Bl.  Comm.  295. 

[1)  Bac.  Abr.  Leases,  E.  2,  note.    But  see  54  Geo.  III.  c.  96. 

(m)  8  &  9  Vict.  c.  106,  s.  5. 

(n)  Shubrick  t'.  Salmond,  3  Burr.  1639. 

(o)  Cooeh  V.  Goodman,  2  Q.  B.  (42  E.  C.  L.  R.  )  590. 


*  The  proposition  in  italics  was  properly  qualified  by  the  lecturer  iu  the 

21 


14  ON    CONTEACTS    BY    DEED.  [lECT.  T. 

ance  of  this  arises  from  the  strong  line  of  distinction  it 
creates  between  Contracts  by  Deed  and  Simple  Contracts. 
For  a  simple  contract,  that  is,  a  contract  by  words  or  by 
writing  not  under  seal,  requires,  as  I  shall  hereafter 
have  occasion  to  explain  more  at  length  [p),  a  considera- 
tion to  support  it  and  give  it  validity.  For  instance, 
suppose  a  written  promise  in  these  words : — "  I,  A.  B., 
promise  C.  D.  that  I  will  pay  the  debt  he  owes  to  E.  F." 
This  promise  would  be  absolutely  void  unless  it  could  be 
shown  to  have  been  made  in  consideration  of  something 
given  or  granted  to  A.  B.  for  making  it ;  for  it  would  be 
a  promise  by  him  to  undertake  a  liability  without  any 
consideration  or  recompense  whatever ;  and,  if  he 
neglected  to  perform  it,  no  action  would  lie  against  him, 
for  the  maxim,  ex  nudo  pacto  non  oritur  actio,  would  in- 
tervene for  his  protection.  But,  if  to  that  very  instru- 
ment, conceived  in  those  very  words,  tlie  additional 
solemnity  of  sealing  and  delivery  were  added,  so  as  to 
make  it  a  deed,  it  would  become  a  good  and  binding 
covenant  on  which  an  action  might  be  supported  {q) ; 

(p)  Lects.  IV,  V. 

Iq)  See  Fallowes  v.  Taylor,  7  T.  E.  475. 

remainder  of  tlie  sentence.  At  common  law  no  consideration  was  requisite  to 
the  validity  of  a  deed,  but  since  the  introduction  of  conveyances  taking  effect 
by  virtue  of  the  Statute  of  Uses,  courts  of  equity,  and  then  courts  of  law, 
have  held  a  consideration  necessary  to  support  such  an  instrument.  It  need 
not  be  expressed  in  the  deed,  but  may  be  proved.  But  if  expressed,  the 
language  of  the  instrument,  so  far  as  the  legal  effect  of  the  deed  is  concerned, 
is  conclusive  (Preston  on  Abstracts,  14),  and  although  in  America,  there  is  a 
numerous  class  of  cases  deciding  that  the  consideration  may,  by  parol,  be 
shown  to  be  greater  or  less,  than  is  expressed  (see  infra,  note  1,  to  page  *21), 
yet  on  neither  side  of  the  Atlantic  is  such  evidence  admitted  to  defeat  the 
legal  eflfect  of  the  deed  as  between  the  parties:  Wilt  v.  Franklin,  1  Binn.  502; 
Hurn  V.  Soper,  6  Harr.  &  J.  276.  Where  the  rights  of  creditors  step  in,  the 
rule  is  different:  Preston,  sitpra;  1  Am.  Lead.  Cases,  1.  This  is  merely  men- 
tioned, in  order  that  conclusions  might  not  be  drawn  from  the  text  which  the 
lecturer  did  not  mean  to  convey,  and  on  page  *165,  ivfra,  he  refers  to  the  sub- 
ject again.  It  may  be  here  observed  that  there  is  another  class  of  instruments 
which  prlmd  facie  presume  a  consideration  equally  Avith  specialties,  viz.: 
negotiable  instruments.    See  Mr.  Smith's  remarks,  infra,  *I81. — b. 

22 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  14 

and  this  is  on  account  of  the  greater  formality  and 
solemnity  of  such  an  instrument  {r.y  The  reason  of 
these  different  rules  *cannot  be  better  expressed 
than  in  the  words  of  Plowden : — "  There  are  ^  J 
two  ways  of  making  contracts  or  agreements  for  lands 
and  chattels.  The  one  is  by  words,  which  is  the  inferior 
method,  the  other  is  by  writing  (^.  e.,  by  Deed),  which 
is  the  superior,  and  because  words  are  oftentimes  spoken 
by  men  unadvisedly  and  without  deliberation,  the  law 
has  provided  that  a  contract  by  words  shall  not  bind 
without  consideration.  As  if  I  promise  to  give  £20  to 
make  your  sale  de  novo,  here  you  shall  not  have  an  ac- 
tion against  me  for  the  £20,  as  it  is  affirmed  in  17  Ed- 
ward IV.,  for  it  is  a  nude  pact,  et  ex  nudo  pacto  non  oritur 
actio.  And  the  reason  is,  because  it  is  by  words  which 
pass  from  men  lightly  and  inconsiderately ;  but  where 
the  agreement  is  by  deed,  there  is  more  time  for  delibera- 
tion. For  when  a  man  passes  a  thing  by  deed,  first 
there  is  the  determination  of  the  mind  to  do  it,  and  upon 
that  he  causes  it  to  be  written,  which  is  one  part  of  de- 
liberation, and  afterwards  he  puts  his  seal  to  it,  which 

(r)  See  Sharington  v.  Strotton,  Plowd.  308  a;  Cruise,  Dig.  tit.  xxxii.  c.  11, 

6s.  54  and  55. 

*  Thus  in  Kennedy  v.  Ware,  1  Pa.  St.  445,  the  Court  refused  to  give  effect 
to  an  unsealed  assignment  of  a  judgment,  intended  as  an  advancement  to  the 
assignor's  daughter,  on  the  ground  that  although  natural  love  and  aflection 
were  sofficient  in  a  sealed  instrument  to  raise  a  use,  yet  that  they  of  them- 
selves formed  no  consideration  to  support  a  mere  parol  gift. — r. 

Though  in  a  contest  with  creditors  a  bond  or  conveyance  without  considera- 
tion is  void,  yet  it  is  not  so  as  between  tlie  parties.  It  may  be,  and  often  is, 
an  element  in  the  question  of  actual  fraud  or  duress.  "What  efibct  has  want 
of  consideration  by  the  common  law,  in  regard  to  a  bond  or  a  judgment?  Cer- 
tainly none  to  destroy  the  conclusiveness  of  the  seal  or  of  tlie  recovery,  A 
voluntary  bond  is,  both  in  equity  and  at  law,  a  gift  of  the  money  :"  Gibson, 
C.  J.,  in  Sherk  v.  Endress,  3  W.  &  S.  255 ;  Harrell  v.  Watson,  G3  N.  C.  454 ; 
Parker  v.  Flora,  lb.  474 ;  Harris  v.  Harris,  23  Gratt.  737.  A  voluntary  bond 
from  a  father  to  his  child,  though  it  must  be  postponed  to  creditors,  yet  is 
good  against  heirs,  legatees  and  all  who  stand  in  no  higher  equity  than  the 
obligor  himself:  Candor  &  Henderson's  Appeal,  27  Pa.  St.  119;  Carter  v. 
King,  11  Rich.   Law    125. — s. 

23 


15  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

is  another  part  of  deliberation,  and  lastly,  be  delivers 

the  writing  as  bis  deed,  wbich  is  the  consummation  of 

his  resolution ;  and  by  the  delivery  of  the  deed  from 

him  that  makes  it  to  him  to  whom  it  is  made,  he  gives 

his  assent  to  part  with  the  thing  contained  in  the  deed 

to  him  to  whom  he  delivers  the  deed,  and  this  delivery 

is  as  a  ceremony  in  law  signifying  fully  his  good  will 

that  the  thing  in  the  deed  should  pass  from  him  to  the 

other.   So  that  there  is  great  deliberation  used  in  th©  mak- 

^,  ^_,    iua;  *of  deeds,  for  which  reason  they  are  received 

r  161  .  . 

'-      -^    as  a  lien  final  to  the  party,  and  are  adjudged 

to  bind  the  party  without  examining  upon  what  cause 

or  consideration  they  were  made.    And,  therefore,  in  the 

case  jDut  in  17  Edward  IV.,  put  it  thus,  that  I  by  deed 

promise  to  give  you  £20  to  make  your  sale  de  novo ; 

here  you  shall  have  an  action  of  debt  upon  this  deed, 

and  the  consideration  is  not  examinable,  for  in  the  deed 

there  is  a  sufficient  consideration,  viz.,  the  will  of  the 

party  that  made  the  deed.     And  so  where  a  carpenter, 

by  parol,  without  writing  undertook   to   build  a  new 

house,  and  for  not  doing  it  the  party  in  11  Henry  IV. 

brought  an  action  of  covenant  against  the  carpenter. 

There  it  does  not  appear  that  he  should  have  anything 

for  building  the  house,  and  it  was  adjudged  the  plaintiff 

should  take  nothing  by  the  writ.     But  if  it  had  been 

by  speciality  it  would  have  been  otherwise.     So  that 

where  it  is  by  deed,  the  cause  or  consideration  is  not  in- 

quirable,  nor  is  it  to  be  weighed,  but  the  party  ought 

only  to  answer  to  the  deed,  and  if  he  confesses  it  to  be 

his  deed  he  shall  be  bound,  for  every  deed  imports  in 

itself  a  consideration,  viz.,  the  will  of  him  that  made  it, 

and,  therefore,  where  the  agreement  is  by  deed,  it  shall 

never  be  called  a  nudum  pactum.     And  in  an  action  of 

debt  upon  an  obligation,  the  consideration  upon  which 

the  party  made  the  deed  is  not  to  be  inquired,  for  it  is 

24 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  16 

sufficient  to  say  that  it  was  his  will  to  make  the 
*deed  "  (s).  Thus,  although  a  promise  to  make  a 
woman  an  allowance  for  her  maintenance  in  ^  -^ 
consideration  of  past  seduction  is  invalid,  past  seduction 
being,  for  reasons  given  in  another  place  {t),  no  con- 
sideration in  law ;  yet,  inasmuch  as  an  instrument  under 
seal  is  good  without  any  consideration,  a  bond  for  main- 
tenance founded  on  previous  seduction  is  good  (u)} 

There  are,  however,  some  deeds  deriving  their  effect 
from  the  Statute  of  Uses  (x),  that  is,  a  bargain  and 
sale,  and  a  covenant  to  stand  seized  to  uses,  both  of 
which  are  void  without  a  consideration  ;  the  first  requir- 
ing a  pecuniary  one,  and  the  latter  a  consideration  of 
blood  or  marriage  (y).^     Contracts  in  restraint  of  trade 

(s)  Plowd.  308,  supra. 

(t)  Post,  Lect.  v.,  "  Moral  Considerations." 

(m)  Turner  v.  Vaughan,  2  Wils.  339;  Nye  v.  Mosely,  6  B.  «&  C.  (13  E.  C. 
L.  R.)  133. 

(x)  27  Hen.  VIII.  c.  10. 

(y)  Sheep.  Touch.  510;  2  BI.  Comm.  338. 

^  The  seduction  of  an  innocent  woman  by  a  pretended  marriage  is  a  valuable 
consideration  for  a  deed  subsequently  made  to  her  and  her  children:  Doe  v. 
Horn,  1  Ind.  363.  This  was  a  case  in  which  the  question  arose  as  to  creditors, 
and,  of  course,  as  to  them,  being  third  parties,  the  seal  was  unimportant.  A 
seal  does  not  protect  an  illegal  contract  founded  on  a  consideration,  contra  bonos 
mores:  Gray  v.  Hook,  4  N.  Y.  449.  There  is  one  American  case  which  accords 
with  the  doctrine  that  past  cohabitation  is  not  a  good  consideration  to  support  a 
promise :  Singleton  v.  Bremar,  Harp.  201.  But  Shenk  v.  Mingle,  13  S.  &  R. 
29,  rules  expressly  the  contrary. — s. 

'  Prior  to  the  passage  of  the  Statute  of  Uses  it  was  the  rule  that  any  convey- 
ance made  without  consideration  passed  the  property  to  the  grantee,  but  to  the 
use  of  the  grantor.  That  statute,  in  the  language  of  Blackstone  (Book  II.,  p. 
333),  "executes  the  use,  as  our  lawyers  term  it;  tliat  is,  it  conveys  the  possession 
to  the  use,  and  transfers  the  use  into  possession,  thereby  making  cestuy  que  use 
complete  owner  of  the  lands  and  tenements,  as  well  at  law  as  in  equity." 
Hence  it  is  essential  that  in  the  case  of  a  covenant  to  stand  seized  to  uses  it  shall 
be  expressed  to  be  made  in  consideration  of  blood  or  marriage,  and  in  a  deed 
of  bargain  and  sale,  the  conveyance  be  either  for  a  consideration  expressed  in 
the  deed,  or  that  it  shall  be  made  to  the  grantee  and  his  heirs  to  and  for  the  use 
of  the  said  grantee  and  his  heirs. 

Practically,  it  is  customary  to  express  in  an  ordinary  deed  that  it  is  made  to 
the  use  of  the  grmtee  and  his  heirs,  as  well  as  to  them;  and  that  it  is  for  a 

25 


17  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

also  are  void,  if  made  without  consideration,  although 
under  seal  {z). 

But  here,  again,  you  must  observe  another  well-known 
and  important  distinction,  namely,  that  though  it  is  not 
necessary  to  show  on  what  consideration  a  deed  is 
founded,  a  party  sued  on  it  is  always,  on  his  part,  allowed 
r*1  Rl  ^^  show  that  it  was  *founded  on  an  illegal  or  im- 
moral consideration,  or  that  it  was  obtained  by 
duress  or  by  fraud ;  for,  were  the  law  otherwise,  deeds 
would,  lo  use  the  expression  of  Lord  Ellenborongh  (a), 
be  made  use  of  as  covers  for  every  species  of  wickedness 
and  ille<'ality.  It  is  therefore  a  well-established  pro- 
position, that  a  deed  may  be  invalidated  by  showing 
that  it  is  tainted  by  such  circumstances  {b).  And  it 
signifies  not  whether  the  illegality  objected  to  it  be  a 
breach  of  the  rules  of  common  law,  or  consist  in  the  con- 
travention of  the  provisions  of  some  statute,  or  whether 
the  prohibition  of  the  statute  be  expressed  in  direct 
terms,  or  be  left  to  be  collected  from  a  penalty  being 
inflicted  on  the  offender  (c).     Thus,  in  Collins  v.  Blan- 

{z)  Mitchell  v.  Reynolds,  1  P.  Wms.  181.  See  Wallis  v.  Day,  2  M.  &  W. 
277;  Horner  v.  Graves,  7  Bing.  (20  E.  C.  L.  R.)  744;  Hutton  v.  Parker,  7 
Dowl.  739;  Mallan  v.  May,  11  M.  &  W.  665;  Tallis  v.  Tallis,  22  L.  J.  (Q.  B.) 
185;  1  E.  &  B.  (72  E.  C.  L.  R.)  39;  Collins  v.  Locke,  4  App.  Cas.  674;  48  L. 
J.  (P.  C  )  68. 

(a)  Paxton  v.  Popliam,  9  East,  421. 

(6)  See  Collins  v.  Blantern,  2  Wils.  341 ;  1  Smith,  L.  C.  387,  8th  ed. 

(c)  Bartlett  v.  Vinor,Carth.  251 ;  Cundell  v.  Dawson,  4  C.  B.  (56  E.  C.  L.  R.) 
376;  Ritchie  v.  Smith,  6  C.  B.  (60  E.  C.  L.  R.)  462;  Copet>.  Rowlands,  2  M.  «& 
W.  149;  M'Kinnel  v.  Robinson,  3  M.  &  W.  434. 

pecuniary  consideration.  It  has  been  held  in  some  cases  that  this  is  essential ; 
but  the  established  rule  seems  to  be  that  any  valuable  consideration  is  sufficient 
lo  support  a  deed  of  bargain  and  sale.  It  may  be  expressed  in  the  deed  or 
proved  aliunde,  and  if  a  consideration  be  expressed,  something  different,  pro- 
vided it  be  not  inconsistent,  may  be  shown  to  have  been  the  actual  considera- 
tion. It  is  always  competent  to  show  that  the  consideration  was  something 
different  from  that  which  is  stated,  or  that  it  has  not  in  fact  been  paid,  for  any 
purpose  except  to  affect  the  validity  of  the  deed  as  a  conveyance  of  title.  For 
that  purpose  the  acknowledgment  of  consideration  in  the  deed  is  conclusive.  See 
Williams,  Real  Prop.  *188 ;  2  VVashburne,  Real  Prop.  *613 ;  note  1,  p.*21,  infra. 
26 


LECT.  I.]  ON"   CONTRACTS   BY   DEED.  18 

tern/  the  consideration  was  the  compromise  of  an  indict- 
ment for  perjury;  in  Coppock  v.  Bower  {d),  the  compro- 
mise of  an  election  petition ;  in  Hindley  v.  M.  of  West- 
meath  {e),  a  future  separation  between  husband  and 
wife  (/).  In  these  cases  the  illegality  consisted  in  the 
infringement  of  the  rule  of  the  common  law,  which 
looks  upon  such  contracts  as  ^improper.  In  r^in-i 
other  cases,  as  I  said,  the  contravention  of  a  stat- 
ute has  been  held  equally  fatal :  as,  of  the  statutes  against 
gaming  {g)  ;  of  the  Acts  for  licensing  playhouses  (h); 
of  the  stat.  6  Anne,  c.  16,  for  requiring  brokers  acting 
within  the  city  and  liberties  of  London  to  procure  them- 
selves to  be  admitted  by  the  Lord  Mayor  and  Alder- 
men (i).^     And  a  great  variety  of  examples  might  be 

(d)  4  M.  &  W.  361. 

(e)  6  B.  &  C.  (13  E.  C.  L.  R.)  200. 

(/)  See  Jones  v.  Waite,  5  Bing.  N,  C.  (35  E.  C.  L.  R.)  341,  4  M.  &  Gr.  (43  R 
C.  L.  R.)  1104,  in  Dom.  Proc;  Wilson  v.  Wilson,  23  L.  J.  (Ch.)  697. 

(g)  Colborne  v.  Stockdale,  Str.  493;  Mazzinghi  v.  Stephenson,  1  Camp.  291. 
See  M'Kinnel  v.  Robinson,  3  M.  &  W.  434,  which,  however,  was  a  simjile  con- 
tract. 

(h)  Levy  V.  Yates,  8  A.  &  E  (35  E.  C.  L.  R.)  129.  See  De  Begnis  v.  Armi- 
Btead,  10  Bing.  (25  E.  C.  L.  R.)  110,  per  Tindal,  C.  J. 

(i)  Cope  V.  Rowlands,  2  M.  &  AV.  149. 

^  And  see  the  notes  to  that  case  in  1  Smith's  Leading  Cases,  8th  Am.  ed. — s. 

*  "  Every  contract,"  said  Lord  Plolt,  in  Bartlett  v.  Viner,  Carth.  2o2,  "  made 
for  or  about  any  matter  or  thing  which  is  prohibited  and  made  unlawful  by 
any  statute,  is  a  void  contract,  though  the  statute  itself  does  not  mention  that 
it  shall  be  so,  but  only  inflicts  a  penalty  on  the  offender,  because  a  penalty  im- 
plies a  prohibition,  though  there  are  no  prohibitory  words  in  the  statute;" 
and  although  attempts  have  been  at  times  made  to  consider  these  words  as 
mere  dicta,  yet  the  rule  thus  stated  has  been  repeatedly  enforced :  Nerot  v, 
Wallace,  3  T.  R.  17;  Mitchell  v.  Smith,  1  Binn.  110;  Foster  v.  Taylor,  5  B. 
&  Ad.  (27  E.  C.  L.  R.)  887 ;  Cope  v.  Rowlands,  2  M.  &  W.  158 ;  though  with 
respect  to  cases  depending  upon  the  English  revenue  laws,  there  appears  to 
be  a  little  discrepancy  of  decision  as  to  whether  those  acts  intended  to  vitiate 
the  contract,  or  to  impose  a  penalty,  for  the  purposes  of  the  revenue,  on  the 
party  offending:  Johnson  v.  Hudson,  11  East,  180;  Brown  v.  Duncan,  10  B.  & 
C.  (21  E.  C.  L.  R.)  93 ;  Wetherell  v.  Jones,  3  B.  &  Ad.  (5  E.  C.  L.  R  )  221  ; 
Cope  V.  Rowlands,  2  M.  &  Wels.  149;  Smith  v.  Mawhood,  14  lb.  461.  Some 
of  these  decisions  are  referred  to  in  a  case  in  the  Supreme  Court  of  the 
United  States  (Harris  v.  Runnels,  12  How.  79),  where,  as  a  defence  to  the 

27 


19  ON   CONTRACTS    BY    DEED.  [lECT.  I. 

given,  but  these  are  sufficient  to  establish  the  ])rinciple 
that,  though  a  man  cannot  defend  himself  from  liability 
upon  his  contract  made  by  deed,  by  saying  that  there 
was  no  consideration  for  it,^  lie  may  by  saying  that  there 
"was  an  illegal  one.^     And  it  must  be  observed,  that  a 

purchase-money  of  certain  slaves,  it  was  set  up  that  no  certificate  liad  been 
obtained  previous  to  tlie  bringing  the  shives  into  the  State  of  Mississippi, 
that  tliey  had  not  been  guilty  of  any  crime,  &c.,  as  was  required  by  a  law  of 
that  ytate,  which  imposed  a  penalty  of  $100  for  every  slave  so  purchased  and 
brought  in ;  and  the  Court,  in  holding  the  contract  itself  not  vitiated  by  this 
statute,  said,  "  We  have  concluded,  before  the  rule  can  be  applied  in  any  case 
of  a  statute  prohibiting  or  enjoining  things  to  be  done,  with  a  prohibition  and 
a  penalty,  or  a  penalty  only  for  doing  a  thing  which  it  forbids,  that  the  statute 
must  be  examined  as  a  whole,  to  find  out  whether  or  not  the  makers  of  it 
meant  that  a  contract  in  contravention  of  it  should  be  void,  or  that  it  Avas  not 
to  be  so.  In  other  words,  whatever  may  be  the  structure  of  the  statute  in  re- 
spect to  prohil^ition  and  penalty,  or  penalty  alone,  that  it  is  not  to  be  taken 
for  granted  that  the  legislature  meant  that  contracts  in  contravention  of  it 
were  to  be  void,  in  the  sense  that  they  were  not  to  be  enforced  in  a  court  of 
justice.  In  this  way  the  principle  of  the  rule  is  admitted,  without  at  all 
lessening  its  force,  though  its  absolute  and  unconditional  application  to  every 
case  is  denied.  It  is  true  that  a  statute,  containing  a  prohibition  and  a 
penalty,  makes  the  act  which  it  punishes  unlawful,  and  the  same  may  be  im- 
plied from  a  penalty  without  a  prohibition ;  but  it  does  not  follow  that  the 
unlawfulness  of  the  act  was  meant  by  the  legislature  to  avoid  a  contract  made 
in  contravention  of  it.  When  the  statute  is  silent,  and  contains  nothing  from 
which  the  contrary  can  be  properly  inferred,  a  contract  in  contravention  of  it 
is  void." — R. 

To  determine  whether  a  contract  made  contrary  to  the  provisions  of  a  penal 
statute  is  illegal  and  void,  the  statute  must  be  considered  as  a  whole  to  ascer- 
tain whether  it  was  intended  to  have  that  eflTect:  Vining  v.  Bricker,  14  Ohio 
St.  331.  Such  intent  will  be  presumed  unless  the  contrary  can  be  fairly 
inferred :  Bemis  v.  Becker,  1  Kans.  22G.  Courts  will  not,  even  with  consent 
of  the  parties,  enforce  a  contract  which  is  in  violation  of  a  statute,  though  not 
therein  declared  void:  Fowler  v.  Scully,  72  Pa.  St.  456. — s. 

'  Nor  at  common  law  would  fraud  be  a  defence  to  an  action  on  a  specialty, 
unless,  indeed,  the  fraud  related  to  the  execution  of  the  instrument :  Vrooman 
r.  Phelps,  2  Johns.  177;  Rogers  v.  Colt,  21  N.  J.  704;  but  in  many  of  our 
States,  the  common  law  rule  as  to  the  solemnity  of  a  seal  estopping  the  obligor 
from  any  defence  except  those  named,  has  been  relaxed  by  statutory  provi- 
sions, so  as  to  entitle  the  obligor  of  a  bond,  under  some  restrictions,  to  show, 
by  way  of  defence,  its  failure,  as  he  formerly  could  have  done  its  illegality  of 
consideration. — R. 

'  The  often-quoted  remarks  of  Lord  Mansfield  upon  this  rule  may  bear 
repetition  here.  "The  objection,"  said  he,  "that  a  contract  is  immoral  or 
ill(;gal  as  between  plaintiff  and  defendant,  sounds  at  all  times  very  ill  in  the 

28 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  19 

contract,  although  not  expressly  i)rohibited  by  a  statute, 
may  be  illegal,  if  opposed  to  the  general  policy  and 
intent  thereof,  as  if  made  to  insure  to  one  creditor  of  a 
bankrupt  a  greater  share  of  his  debt  than  the  others  can 
havH  (k);  or  a  contract  made  in  order  to  enable  another 
to  infringe  that  policy  and  intent  (/).  These  contracts 
are  invalid,  and  cannot  be  sued  upon,  although  r*oA-| 
*under  seal.  Even  if  there  were  several  considera- 
tions, and  any  one  of  them  was  illegal,  it  avoids  the 
whole  instrument ;  for  it  is  impossible  to  say  how  much 
or  how  little  weight  the  illegal  portion  may  have  had 
in  inducing  the  execution  of  the  entire  contract  (m). 
Though  it  is  just  the  reverse  where  the  consideration  is 
good,  and  there  are  several  covenants,  some  legal,  some 
illegal :  for  then  the  illegal  promises  alone  will  be  void, 
and  the  legal  valid  {n)}     As  when,  upon  a  dissolution 

(k)  Staines  v.  Wainewright,  6  Bing.  N.  C.  (37  E,  C.  L.  E.)  174,  See  Ex  parte 
Oliver,  re  Hodgson,  4  De  G.  &.  S.  354. 

{D  M  Kinnel  v.  Robinson,  3  M.  &  W.  434  ;  De  Begnis  v.  Armistead,  10  Bing. 
(25  E.  C.  L.  R.)  110. 

(m)  Waite  v.  Jones,  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  662,  per  Tindal,  C.  J. ; 
Shackell  v.  Rosier,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  634;  Howden  v.  Haigh,  11 
A.  &  E.  (39  E.  C.  L.  R.)  1033. 

(n)  Gaskell  v.  King,  11  East,  165 ;  How  v.  Synge,  15  East,  440. 

mouth  of  the  defendant.  It  is  not  for  his  sake,  however,  that  the  objection  is 
ever  allowed,  but  it  is  founded  in  general  principles  of  policy,  which  the  de- 
fendant has  tlie  advantage  of,  contrary  to  the  real  justice,  as  between  him  and 
the  plaintiff,  by  accident,  if  I  may  so  say.  The  principle  of  public  policy  is 
this :  ex  dolo  malo  rum  oritur  actio.  No  court  will  lend  its  aid  to  a  man  who 
founds  his  cause  of  action  upon  an  immoral  or  an  illegal  act.  If,  from  the 
plaintiff's  own  stating,  or  otherwise,  the  cause  of  action  appears  to  arise,  ez 
turpi  causa,  or  the  transgression  of  a  positive  law  of  this  country,  then  the 
court  says  he  has  no  right  to  be  assisted.  It  is  upon  that  ground  the  court 
goes,  not  for  the  sake  of  the  defendant,  but  because  they  will  not  lend  their 
aid  to  such  a  plaintiff.  So,  if  the  plahitiff  and  defendant  were  to  change  sides, 
and  the  defendant  was  to  bring  his  action  against  the  plaintiff,  the  latter  would 
then  have  the  advantage  of  it;  for  where  both  are  equally  in  fault,  'potior  ext 
conditio  defendentis ;' "  Holman  v.  Johnson,  1  Cowp.  343 ;  Gray  v.  Hook,  4  N. 
Y.  449.— R. 

'  Where  covenants,  illegal  as  against  public  policy,  enter  into  and  form  a 
part  of  the  entire  consideration  of  a  contract  and  both  parties  are  in  fault,  the 

29 


20  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

of  partnership,  one  partner  purchased  the  other's  moiety, 
and  the  latter  covenanted  not  to  carry  on  a  similar  trade 
within  the  cities  of  London  and  Westminster,  or  within 
GOO  miles  thereof,  the  Exchequer  Chamber  held  that 
the  covenant  was  void  as  to  the  600  miles,  as  an  unreas- 
onable restraint  of  trade ;  but  good  as  to  the  cities  of 
London  and  Westminster  (o). 

The  next  quality  of  a  contract  by  deed  is  its  opera- 
tion by  way  of  estoppel;  the  meaning  of  which  is,  that 
the  person  executing  it  is  not  permitted  to  contravene 
or  disprove  what  he  has  there  asserted,  though  he  may 
do  so  where  the  assertion  is  in  a  contract  not  under  seal. 
P^.f^-|-i  A  good  example  *of  this  is  the  case  of  a  receipt. 
A  creditor  who  has  given  a  receipt  not  under 
seal  is  nevertheless  permitted  to  prove  that  he  has  not 
received  the  money  (p) ;  but  it  is  otherwise  if  the  re- 
ceipt be  by  deed,  for  then  the  law  admits  no  evidence 
to  the  contrary  (q)}    Such  is  the  nature  of  what  we  call 

(o)  Price  v.  Green,  16  M.  &  W.  346 ;  Nicholls  v.  Stretton,  10  Q.  B.  (59  E.  C. 
L.  R.)  346.  See  also  Robinson  v.  Ommaney,  21  Ch.  Div.  780 ;  23  lb.  285 ;  51 
L.  J.  (Ch.)  894;  52  lb.  440. 

(p)  Graves  v.  Key,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  313;  Stratton  v.  Rastall,  2 
T.  R.  366 ;  Farrer  v.  Hutchinson,  9  A.  &  E.  (36  E.  C.  L.  R.)  641 ;  Bowes  v. 
Foster,  27  L.  J.  (Ex.)  262 ;  2  H.  &  N.  779 ;  Lee  v.  Lancashire  and  Yorkshire 
Kail.  Co.,  L.  R.  6  Ch.  527. 

{q)  See  the  judgment  of  the  Court  in  Fitch  v.  Sutton,  5  East,  230. 

contract  is  wholly  void.  A  separation  of  the  good  consideration  from  that 
which  is  illegal  will  be  attempted  only  in  those  cases  in  which  the  party  seek- 
ing to  enforce  the  contract  is  not  the  wrongdoer :  Saratoga  County  Bank  v. 
King,  44  N.  Y.  87;  Marsh  v.  Russell,  2  Lans.  340  [reversed  66  N.  Y.  288]. 
A  contract  based  in  part  upon  an  illegal  transaction  is  void  in  toto  ;  but  if 
based  in  part  on  a  void  transaction  is  void  only  yiro  tanto :  Doty  v.  Knox  Bank, 
16  Ohio  St.  133 ;  Bank  v.  Stegall,  41  Miss.  142.  If  part  of  a  single  consideration 
is  illegal  the  whole  promise  fails:  Chandler  v.  Johnson,  39  Ga.  85,  and  see 
Gelpcke  v.  Dubuque,  1  Wall.  U.  S.  221 ;  Decker  v.  Morton,  1  Redf.  Surr.  477  ; 
Kottwitz  V.  Alexander,  34  Tex.  689.— s. 

*  The  current  of  authority,  however,  on  this  side  of  the  Atlantic,  has  much 
relaxed  the  strictness  of  the  English  cases  on  this  subject.  Thus  it  may  be 
considered  as  settled,  notwithstanding  some  early  cases  to  the  contrary,  that 
evidence  is  admissible,  either  on  the  part  of  the  grantor  or  the  grantee,  to 

30 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  21 

an  estoppel  created  by  deed  (r),  the  principle  of  whicli 
is  explained  by  Taunton,  J.,  in  Bowman  v.  Taylor  (s). 
"The  principle,"  said  his  Lordship,  "is  not  so  unjust 
or  absurd  as  it  has  been  too  much  the  custom  to  repre- 
sent. The  principle  is,  that,  where  a  man  has  entered 
into  a  solemn  engagement  by  and  under  his  hand  and 
seal  as  to  certain  facts,  he  shall  not  be  permitted  to  deny 
any  matter  he  has  so  asserted."  Therefore,  for  example, 
if  a  distinct  statement  of  a  particular  fact  is  made  in  the 
recital  of  a  bond  or  other  instrument  under  seal,  and  a 
contract  is  made  with  reference  to  that  recital,  it  is  un- 
questionably true,  that,  as  between  the  parties  to  that 

(r)  Shelley  v.  Wright,  Willes,  9 ;  Hill  v.  Manchester  and  Salford  Water- 
works, 2  B.  &  Ad.  (22  E.  C.  L.  E.)  544. 
(s)  2  A.  &  E.  (29  E.  C.  L.  K.  )  278. 

Bhow  that  the  consideration  named  in  the  deed  was  really  greater  or  less 
than  is  there  expressed:  Bullard  v  Briggs,  7  Pick.  533;  Wade  v.  Merwin,  11 
To.  288 ;  Clapp  v.  Tirrell,  20  lb.  247  ;  McCrea  v.  Purmort,  16  Wend.  460 
(where  many  authorities  are  cited  and  commented  on) ;  Burbank  v.  Gould,  15 
Me.  118;  Belden  i).  Seymour,  8  Conn.  310;  Meeker  v.  Meeker,  16  lb.  383; 
Beach  v.  Packard,  10  Vt.  96 ;  Bingham  v.  Weiderwax,  1  N.  Y.  509 ;  Watson 
V.  Blaine,  12  S.  &  R.  131 ;  Jack  v.  Dougherty,  3  Watts,  158 ;  Bolton  v.  Johns, 
5  Pa.  St.  145 ;  Harvey  v.  Alexander,  1  Rand.  219 ;  Wilson  v.  Shelton,  9  Leigh. 
342;  Curry  v.  Lyles,  2  Hill  (S.  C.)  404;  Moore  v.  McKie,  5  Sra.  &  M.  238; 
unless  such  evidence  is  introduced,  either  directly  or  indirectly,  for  the  pur- 
pose of  defeating  the  operation  of  the  instrument  as  a  conveyance,  as  by 
showing  it  void  for  want  of  a  sufficient  consideration :  Wilt  v.  Franklin,  ] 
Binn.  502 ;  Hurn  v.  Soper,  6  Harr.  &  J.  276.  Thus  a  grantee  may  prove  the 
expressed  consideration  to  be  greater,  for  the  purpose  of  increasing  his  dam- 
ages on  the  covenants  in  the  deed:  Belden  v.  Seymour,  8  Conn.  310;  while 
on  the  other  hand  the  grantor  may  prove  it  less  for  the  purpose  of  diminish- 
ing them:  Morse  v.  Shattuck,  4  N.  H.  229;  Harlow  v.  Thomas,  15  Pick. 
70.— R. 

See  Murphy  v.  Branch  Bank  of  Mobile,  16  Ala.  90 ;  Den.  v.  Shotwell,  23 
N.J.  465 ;  In  re  Young's  Estate,  3  Md.  Ch.  D.  461 ;  Hammond  v.  Woodman, 
41  Me.  177 ;  Harwell  v.  Fitts,  20  Ga.  723 ;  Farrington  v.  Barr,  36  N.  H.  86 ; 
Thompson  v.  Allen,  12  Ind.  539.  The  consideration  clause  in  a  deed  estops 
the  grantor  from  denying  that  a  consideration  has  been  received.  In  all 
other  respects,  it  is  open  to  explanation  or  correction  by  parol  evidence,  and 
it  may  be  shown  that  the  consideration  has  not  been  actually  paid,  or  that  it 
has  been  overpaid  by  fraud  or  mistake :  Goodspeed  v.  Fuller,  46  Me.  141 ;  Irvine 
V.  McKeon,  23  Cal.472;  and  see  Carbreyj).  Willis,  7  Allen,  364;  Allen  v.  Allen, 
45  Pa.  St.  4G8;  Dodge  v.  Walley,  22  Cal.  224;  Simson  v.  Eckstein,  lb.  580.— fl. 

31 


21  ON   CONTRACTS    BY    DEED.  [lECT.  1. 

instrument,  and  in  an  action  upon  it,  it  is  not  competent 
for  the  party  bound  to  deny  the  recital  (t).     But  an 
p:.rt.,-|    allegation  '-'must,  in  order  to  operate  as  an  estoppel^ 
be  clear,  distinct,  and  definite  \ii).    As  where  A. 
having  an  equitable  estate  in  fee  in  certain  lands,  mort- 
gaged them  to  B.,  reciting  in  the  instrument  of  mort- 
gage that  he  was  legally  or  equitably  entitled  to  them. 
He  afterwards  obtained  the  legal  estate,  and  conveyed 
the  latter  to  C.     The  Court  of  King's  Bench  held  that, 
there  being  in  the  instrument  of  mortgage  no  "certain 
and  precise  averment  of  any  seisin  in  A.,  but  merely  a 
recital  that  he  was  legally  or  equitably  entitled,  C,  who 
claimed  under  A.,  was  not  estopped  from  setting  up 
against  B.  the  legal  estate  so  acquired  by  him  {x).    Such 
a  recital  is  indeed  the  hypothesis  upon  which  the  con- 
tract is  made  by  the  parties;  and  therefore  it  would 
quite  overthrow  their  mutual  intention,  if,  in  the  absence 
of  fraud,  the  recital  could  be  denied.     For  the  same 
reason,  the  estoppel  has  no  effect  in  matters  not  depend- 
p.f.oo-1    ing  upon   that  contract;  thus  even  a  *party  to 
a  deed  is  not  estopped  in  an  action  by  another 
party,  not  founded  on  the  deed  but  wholly  collateral 
to  it,  from  disjDuting  the  facts  so  admitted  therein  {y). 
In  such  case  evidence  of  the  circumstances  under  which 
the  admission  was  made,  is  receivable  to  show  that  it 

(i)  Carpenter  v.  BuUer,  8  M.  &  W.  209 ;  Pilbrow  v.  Pilbrow's  Atmospheric 
E.  C,  5  C.  B.  (57  E.  C.  L.  R.)  440 ;  Young  v.  Raincock,  7  C.  B.  (62  E.  C.  L.  R.) 
310;  Stronghill  v.  Buck,  19  L.  J.  (Q.  B.)  209;  14  Q.  B.  (68  E.  C.  L.  R.)  781. 
See  per  Wood,  V.  C,  in  Carter  v.  Carter,  3  Kay  &  J.  617,  645 ;  27  L.  J.  (Ch.) 
74,  84. 

(w)  Right  d.  Jefferevs  v.  Bucknell,  2  B.  <%  Ad.  (22  E.  C.  L.  R.)  278 ;  Lain- 
Bon  V.  Tremere,  1  A.  et  E.  (28  E.  C.  L.  R.)  792;  Heath  v.  Crealock,  L.  R.  10 
Ch.  22 ;  44  L.  J.  (Ch.)  157 ;  General  Finance,  Mortgage,  and  Discount  Co.  v. 
Liberator  Permanent  Benefit  Building  Soc,  10  Ch.  Div.  15. 

{x)  Right  V.  Bucknell,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  278,  supra;  Heath  v. 
Crealock,  L.  R.  10  Ch.  22;  44  L.  J.  (Ch.)  157;  General  Finance,  Mortgage, 
and  Discount  Co.  v.  Liberator  Permanent  Benefit  Building  Soc,  10  Ch.  Div. 
15. 

{y)  Carter  i'.  Carter,  supra;  Fraser  v.  Pendlebury,  31  L.  J.  (C.  P.)  1. 

32 


LECT.  I.]  ON   CONTRACTS   BY    DEED.  23 

was  inconsiderately  made,  and  is  not  entitled  to  weight 
as  a  proof  of  the  fact  it  is  used  to  establish  (2;).  For  the 
same  reason,  if  all  the  facts  appear  by  the  deed,  a  party 
thereto  is  not  estopped  from  averring  them  although 
they  are  contradictory  to  some  part  of  the  deed  (a).  An 
instructive  instance  of  an  estoppel  is  afiforded  by  the 
case  of  Wiles  v.  Woodward  {b).  In  this  case  the  plain- 
tiff and  defendant  had  been  in  partnership  together  as 
paper  manufacturers  and  iron  merchants.  The  part- 
nership was  dissolved  by  deed,  by  which  it  was  recited 
that  an  agreement  had  been  made  that  the  defendant 
should  have  all  the  stock  in  trade  of  the  business  of 
paper  merchants,  but  that  the  plaintiff  should  receive 
paper  out  of  that  stock  to  the  value  of  £898  45.  lid., 
which  was  to  remain  in  the  paper  mill  for  a  year. 
*0n  the  other  hand  the  plaintiff  was  to  have  the  po^-i 
stock  in  trade  in  the  iron  business.  The  deed 
further  recited,  that,  in  pursuance  of  that  arrangement, 
paper  of  that  value  had  been  delivered  to  the  plaintiff', 
and  that  the  same  then  was  in  the  paper  mill,  as  the 
plaintiff  thereby  acknowledged.  It  then  contained  an 
assignment  by  the  defendant  to  the  plaintiff  of  all  the 
stock  in  trade  of  the  iron  business,  and  by  the  j^laintiff 
to  the  defendant  of  all  the  stock  in  trade  of  the  paper 
making  business,  except  the  £898  4s.  lid.  worth  of 
paper  delivered  to  the  plaintiff,  and  mutual  releases, 
and  a  dissolution  of  the  old  partnership.  In  fact  no 
paper  had  been  delivered  or  set  apart;  and  in  an  action 
of  trover  for  it,  it  was  contended  by  the  defendant,  that 

(z)  Carpenter  t'.  Buller,  supra. 

(a)  Co.  Litt.  352  b.;  Pargeter  v.  Harris,?  Q.  B.  (53  E.  C.  L.  R.)  708 ;  Dancer 
V.  Hastings,  4  Bing.  (13  E.  C.  L.  R.)  2;  Jolly  v.  Arbuthnot,  4  De  G.  &  J.  224; 
Morton  v.  Woods,  L.  R.  3  Q.  B.  658 ;  4  lb.  293  (Ex.  Ch.) ;  37  L.  J.  (Q.  B.)  242 ; 
38  lb.  81 ;  Rowbotham  v.  Wilson,  27  L.  J.  (Q.  B.)  61,  per  Watson,  B.;  8  E.  & 
B.  (92  E.  C.  L.  R.)  123. 

(6)  5  Exch.  557.  " 

3  33 


24  ON    CONTRACTS    BY    DEED.  [lECT.  I. 

no  certain  quantity  having  become  the  property  of  the 
plaintiff,  no  definite  paper  could  be  said  to  be  his ;  and 
consequently,  that  an  action  of  trover,  not  being  an 
action  on  the  deed,  and  which  implies  that  the  thing 
sued  for  is  the  plaintiff's,  could  not  be  supported.  But 
the  Court  of  Exchequer  considered  that  the  parties  were 
estopped  by  the  deed,  not  merely  in  an  action  thereon, 
but  in  this  proceeding,  which  was  to  enforce  the  rights 
arising  out  of  it.  "  A  recital,"  said  Parke,  B.,  deliver- 
ing the  judgment  of  the  Court,  "when  it  is  of  a  fact 
agreed  upon  by  both,  binds  both ;  and  the  present  claim 
is  not  collateral  to  the  deed,  as  in  Carpenter  v.  Buller. 
It  is,  therefore,  an  estoppel  on  both.  The  parties  have 
pi-.or-i  agreed,  with  respect  to  *the  stock  in  trade  in  the 
paper  business,  that  they  should  stand  precisely 
in  the  same  situation  as  if  the  stock  had  been  divided, 
and  that  part  amounting  to  the  stipulated  sum  had  been 
delivered  to  the  plaintiff;  and,  being  in  that  situation, 
the  question  is  what  their  respective  rights  are."  ^ 


^  One  of  the  most  frequent  occurring  instances  of  estoppel  in  pais,  or,  as  it 
should  be  in  this  case  more  correctly  termed,  equitable  estoppel,  is  the  rule 
which,  in  its  general  application,  prohibits  the  tenant  from  denying  his  land- 
lord's title,  and  which,  although  it  has  been  supposed  to  have  been  feudal  in 
its  origin,  seems  to  have  arisen  in  later  times.  See  Judge  Hare's  note  to 
Duchess  of  Kingston's  case,  2  Smith's  Lead.  Cas.,  8th  ed. ;  Morris  on  Re- 
plevin, 121.  "The  principle  was  of  necessity  called  into  being  by  that  feature 
of  the  action  of  ejectment  which  requires  an  absolute  possessory  title  in  the 
plaintiff,  and  makes,  in  its  absence,  the  mere  fact  of  possession  decisive  in  favor 
of  the  defendant.  The  result  of  allowing  the  tenant  to  deny  the  right  of  the 
landlord,  in  an  ejectment  for  the  land,  would  therefore  be  to  take  the  estate 
from  the  latter,  and  confer  it  on  the  former,  whenever  there  was  a  defect,  either 
in  the  title  itself,  or  the  proof  brought  forward  to  sustain  it.  This  would 
obviously  be  equally  inconsistent  with  public  policy  and  private  faith,  and 
would  prevent  men  from  letting  their  property,  even  when  they  are  unable  to 
use  it  themselves.  When,  therefore,  possession  is  obtained  under  a  lease,  the 
lessee  is  estopped  from  keeping  the  land  in  violation  of  the  agreement  under 
which  it  was  acquired :"  Note  to  Duchess  of  Kingston's  case. 

The  rule,  therefore,  is  a  very  general  one  with  respect  to  an  ejectment 
brought  by  the  landlord  against  the  tenant  (unless,  indeed,  in  the  case  where 
tue  assent  of  the  latter  is  produced  by  the  fraud  or  misrepresentation  of  the 

34 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  25 

Before  quitting  this  head  of  Estoppel,  it  must  be  ob- 
served that  as  the  deed  takes  effect  from  the  delivery, 

former :  Miller  v.  M'Brier,  14  S.  &  R.  382 ;  Hockenbury  v.  Snyder,  2  W.  & 
S.  240),  and  also  with  respect  to  actions  brought  by  the  landlord  to  recover 
the  rent,  for  the  "  mischief  to  which  the  absence  of  such  a  rule  as  between 
landlord  and  tenant  must  lead,  would  evidently  be  that  a  tenant,  having  ob- 
tained the  possession  from  his  landlord,  could  betray  it  to  another,  and  thus 
drive  the  former  to  an  ejectment  to  regain  the  possession.  The  result  would 
be  that  no  landlord  would  ever  be  safe  from  the  prospect  of  litigation.  Hence 
the  tenant's  obligation  to  restore  to  him  the  possession :"  Rawle  on  Covenants 
for  Title,  235.  It  may  also  be  observed  that  where  the  lease  is  by  indenture, 
the  law  of  "  estoppel  by  deed  "  applies :  Jordan  v.  Twells,  Rep.  Temp.  Ilardw. 
171 ;  Palmer  v.  Elkins,  2  Raym.  looO.  And  where  the  action  is  assumpsit  for 
use  and  occupation,  the  issue  sought  to  be  raised  by  the  question  of  title  is  an 
immaterial  one :  Lewis  v.  Willis,  1  Wils.  314  ;  Doe  v.  Smythe,  4  M.  &.  S.  347  j 
Cobb  V.  Arnold,  8  Mete.  398. 

The  rule  only  operates,  however,  to  debar  the  tenant  from  denying  the  title 
at  the  time  of  possession  given,  and  he  is  at  liberty  to  show  that  it  has  since  ex- 
pired or  been  defeated  :  Walton  v.  Waterhouse,  2  Wms.  Saund.  41 8,  note ;  Hop- 
croft  V.  Keys,  2  M.  &  Sc.  767  ;  Jackson  v.  Rowland,  6  Wend.  666;  Devacht  v. 
Newsam,  3  Ohio,  57 ;  Randolph  v.  Carlton,  8  Ala.  606 ;  or  such  circumstances 
as  amount  to  a  constructive  eviction,  as  by  being  compelled  to  make  pay- 
ments to  a  mortgagee,  groimd  landlord,  &c. :  Doe  v.  Barton,  11  A.  &  E.  (39  E. 
C.  L.  R.)  314;  Mayor  of  Poole  v.  Whitt,  15  M.  &  W.  577  ;  Waddilove  v.  Bar- 
nett,  2  Birg.  N.  C.  (29  E.  C.  L.  R.)  538 ;  Franklin  v.  Carter,  1  C.  B.  (50  E.  C. 
L.  R.)  760;  Jones  i'.  Clark,  20  Johns.  51;  Magill  v.  Hillsdale,  6  Conn.  469; 
Smith  V.  Shepard,  15  Pick.  147  ;  Welch  v.  Adams,  1  Mete.  494 ;  George  v. 
Putney,  4  Cush.  355 ;  Greeno  v.  Munson,  9  Vt.  37  ;  Chambers  v.  Pleak,  6  Dana, 
428.— R. 

One  entering  as  a  sub-tenant  is  in  like  manner  estopped  from  denying  the 
title  of  the  paramount  landlord:  Milhouse  v.  Patrick,  6  Rich.  350;  [Jones  v. 
Dove,  7  Or.  467  ;  and  the  heirs  of  a  tenant  while  standing  solely  on  his  right : 
Lewis  V.  Adams,  61  Ga.  559.]  When  one,  however,  already  in  possession, 
acknowledges  himself  to  be  the  tenant  of  another,  he  may  destroy  the  effect 
of  such  acknowledgment  by  showing  that  it  was  procured  by  fraud,  or  pro- 
ceeded from  a  clear  mistake  as  to  title :  Givens  v.  MuUinax,  4  Rich.  590, 
The  gratuitous  payment  of  rent  by  one  in  possession  of  real  estate  does  not 
estop  him  from  showing  the  true  character  in  which  he  holds  the  premises : 
Shelton  i'.  Carrol,  16  Ala.  148.  And  see  upon  the  general  principle  of  a  tenant's 
being  estopped  from  controverting  his  lessor's  title:  Cody  v.  Quarterman,  12 
Ga.  386 ;  Freeman  v.  Heath,  13  Ired.  498 ;  Sims  v.  Glazener,  14  Ala.  695 ; 
Pope  V.  Harkins,  16  lb.  321;  Hoen  v.  Simmons,  1  Cal.  119;  Henly  i.  The 
Branch  Bank,  16  Ala.  552.  A  tenant,  after  the  tenancy  has  terminated,  and 
he  has  restored  the  possession  to  his  landlord,  may  a-ssert  a  title  paramount 
against  him,  and  the  previous  tenancy  cannot  bar  his  right  to  recover:  Smith 
V.  Mundy,  18  lb.  182 ;  Page  v.  Kinsman,  43  N.  H.  328 ;  Wilson  v.  James,  79 
N.  C.  349;  Rogers  v.  Boynton,  57  .\la.  501.     He  may  show  also  that  the  land- 

35 


25  ON   CONTRACTS   BY    DEED.  [lECT.  I, 

not  from  the  apparent  date,  neither  party  can  be 
estopped  from  showing  the  real  date  of  the  delivery, 
although  by  doing  so  a  very  different  meaning  may  be 
given  to  the  deed  from  that  which  would  be  given  to  it 
if  the  parties  were  estopped  from  denying  that  the  date 
"was  the  time  from  w^hich  the  deed  commenced  in  effect. 
Thus,  where  a  charter-party,  dated  6th  February,  con- 
tained a  covenant  that  a  ship  should  proceed  from 
Demerara,  where  she  then  lay,  on  or  before  12th  Feb- 
ruary, the  defendant  was  allowed  to  show  that  the 
cliarter-party  was,  in  fact,  not  executed  till  15th  March, 
and  that  therefore  the  condition  as  to  the  time  of  sailing 
■was  dispensed  with  (c). 

But  notwithstanding  the  strong  terms  in  which 
estoppel  is  often  described  as  peculiar  to  a  deed,  it  must 
not  be  supposed  that  a  party  cannot  be  estopped  by  any 
other  act  (d),  although  estoppel  by  deed   is  much  the 

(c)  Hall  V.  Cazenove,  4  East,  477. 

(d)  M'Cance  v.  London  and  North  Western  Eailwaj,  34  L.  J.  (Ex.)  39. 


lord's  title  has  expired,  or  that  he  has  sold  his  interest  to  another :  Homer  v. 
Leeds,  25  N.  J.  106;  Russel  v.  Allard,  18  N.  H.  222.  He  may  purchase  his 
landlord's  title  at  sale  on  execution,  and  may  set  up  the  title  thus  acquired 
against  his  landlord :  Elliott  v.  Smith,  23  Pa.  St.  131 ;  Wolf  v.  Johnson,  30 
Miss.  513;  Bettison  v.  Budd,'17  Ark.  546.  A  tenant  may  show  that  his  land- 
lord's title  has  ceased,  even  though  he  has  paid  rent  to  the  assignee:  M'Devitt 
V.  Sullivan,  8  Cal.  592.  If  one  in  possession  under  claim  of  title  is  hy  fraud 
or  mistake  induced  to  helieve  that  another  has  a  better  title,  and  therefore  to 
take  a  lease  from  him,  the  tenant  will  not  be  estopped  by  that  lease  from  deny- 
ing the  lessor's  title :  Alderson  v.  Miller,  15  Gratt.  279 ;  Pearce  v.  Nix,  34  Ala. 
183;  Cramer  v.  Carlisle  Bank,  2  Grant,  267;  Schultz  v.  Arnot,  33  Mo.  172; 
Cain  V.  Gimon,  36  Ala.  168.  A  tenant  is  not  estopped  from  denying  the  title 
of  his  landlord  after  he  has  surrendered  possession :  Zimmerman  v.  March- 
land,  23  Ind.  474.-^. 

A  tenant  is  estopped  from  denying  the  title  of  his  landlord's  assignee: 
People  V.  Angel,  61  How.  Pr.  159.  A  tenant  who  accepts  a  lease  under  an 
entire  misapprehension  of  its  purport  is  not  estopped  to  deny  the  title  of  his 
landlord :  Wiggin  v.  Wiggin,  58  N.  H.  235.  A  lessee  who  has  never  taken 
possession  is  not  estopped  to  deny  his  landlord's  title :  District  of  Columbia 
V.  Johnson,  1  Mackey  (D.  C.)  51. 

36 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  25 

most  frequent.  "Touching  ^estoppels,  which  is  r:;:9p-| 
an  excellent  and  curious  part  of  learning,"  says  • 
Lord  Coke  {e),  "it  is  to  be  observed  that  there  be  three 
kinds  of  estoppels,  viz.,  by  matter  of  record,  by  matter  in 
writing  {i.e.,  by  deed),  and  by  matter  in  pais.  By  matter 
of  record,  viz.,  by  letters  patent,  fine,  recovery,  pleading, 
taking  of  continuance,  confession,  imparlance,  warrant 
of  attorney,  admittance  " — some  of  which  records  are 
now  obsolete.  "  By  matter  in  writing,  as  by  deed  " — of 
which  we  have  already  treated.  "  By  matter  in  pais,  as 
by  livery,  by  entry,  by  acceptance  of  rent,  by  partition, 
by  acceptance  of  an  estate,  whereof  Littleton  maketh  a 
special  observation,  that  a  man  shall  be  estopped  by 
matter  in  the  country  without  any  writing."  Of 
estoppel,  by  matter  of  record,  it  is  not  requisite  to  say 
more ;  but  one  or  two  examples  of  estoppel  in  pais  will 
be  useful,  both  as  showing  that  tlie  force  of  an  estoppel 
is  not  peculiar  to  a  deed,  and  as  illustrating  still  further 
the  grounds  and  reasons  of  estoppel  by  deed  itself.  In 
Pickard  v.  Sears  (/)  it  was  laid  down  by  the  Court  of 
Queen's  Bench  that  the  rule  of  law  is  clear,  "  that, 
where  one,  by  his  words  or  conduct,  wilfully  causes  an- 
other to  believe  the  existence  of  a  certain  state  of  things, 
and  induces  him  to  act  on  that  belief  so  as  to  alter  his 
own  previous  position ;  the  former  is  concluded  from 
averring  against  the  latter  a  different  state  of  ra^o'i'] 
*things  as  existing  at  the  same  time."  "  By  the 
term  *  wilfully,^  however,  in  that  rule,"  to  quote  the  words 
of  Parke,  B.,  in  Freeman  v.  Cooke  {g),  "  we  must  under- 
stand, if  not  that  the  party  represents  that  to  be  true, 
which  he  knows  to  be  untrue,  at  least  that  he  means  his 
representation  to  be  acted  upon,  and  that  it  is  acted  upon 

(c)  Co.  Litt.  352. 

(/)  6  A.  &  E.  (33  E.  C.  L.  R.)  474;  Heane  r.  Rogers,  9  B.  &  C.  (17  E.  C.  L. 
B.)  586. 

[g)  2  Ex.  654,  663. 

37 


27  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

accordingly ;  and  if,  whatever  a  man's  real  intention  may 
be,  he  so  conducts  himself  that  a  reasonable  man  would 
take  the  representation  to  be  true,  and  believe  that  it 
was  meant  that  he  should  act  upon  it,  and  did  act  upon 
it  as  true,  the  party  making  the  representation  would  be 
equally  precluded  from  contesting  its  truth ;  and  con- 
duct by  negligence  or  omission,  where  there  is  a  duty 
upon  a  person  by  usage  of  trade  or  otherwise  to  disclose 
the  truth,  may  often  have  the  same  effect.  As,  for  in- 
stance, a  retiring  partner  omitting  to  inform  his  cus- 
tomers of  the  fact  in  the  usual  mode  that  the  continuing 
partners  are  no  longer  authorised  to  act  as  his  agents,  is 
bound  by  all  contracts  made  by  them  with  third  per- 
sons, on  the  faith  of  their  being  so  authorised 

In  truth,  in  most  cases  to  which  the  doctrine  in  Pickard 
V.  Sears  is  to  be  applied,  the  representation  is  such  as  to 
amount  to  the  contract  or  license  of  the  party  making 
it."  Again,  where  a  railway  company  had  been 
deceived  by  a  forged  transfer  into  registering  shares, 
and  granting  certificates  of  registration  of  the  shares, 
r*9m  ^'^^  ^^^^  names  mentioned  in  the  forged  transfer, 
whereby  innocent  persons  were  induced  to  pur- 
chase those  shares,  under  the  belief  that  the  vendors 
were  registered  shareholders;  it  was  held  that  the 
principle  above  laid  down  was  applicable,  and  that 
the  company  were  estopped  by  their  own  act  from 
denying  the  right  of  the  innocent  transferees  of  the 
shares  to  be  registered  as  shareholders  (h)}     In  short, 

(h)  In  re  Bahia,  &c.,  Kail.  Co.,  L.  K.  3  Q.  B.  584 ;  37  L.  J.  (Q.  B.)  176;  fol- 
lowed  in  Hart  v.  Frontino,  &c.,  Co.,  L.  E.  5  Ex.  Ill ;  39  L.  J.  (Ex.)  93;  see 
also  Shaw  v.  The  Port  Philip  and  Colonial  Gold  Mining  Co.,  13  Q.  B.  D.  103  j 
53  L.  J.  (Q.  B.)  369.     The  issue,  however,  of  the  certificate  of  registration 

^  It  is  not  necessary  to  an  estoppel  that  the  party  should  design  to  mislead, 

if  his  act  was  calculated   to  mislead,  and  actually  has  misled  another  acting 

upon  it  in  good  faith  :  Bank  v.  Hazard,  30  N.  "Y .  226  ;  contra,  Plumer  v.  Lord, 

9  Allen  455 ;  Turner  v.  Coffin,  12  lb.  401 ;  Eice  r.  Bunce,  49  Mo.  231 ;  Conti- 

38 


LECT.  I.]  ON   CONTRACTS   BY    DEED.  28 

to  use  the  words  of  Lord  Blackburn  in  Burkinshaw  v. 
Nicolls  (^),  "when  a  person  makes  *to  another  r:j:9Q-| 
the  representation,  'I  take  upon  myself  to  say 

does  not  necessarily  estop  the  company  from  setting  up  the  forgery  as  between 
themselves  and  the  person  who  innocently  brings  the  forged  transfer  to  them, 
and  invites  them  to  register  it ;  although  they  would  be  estopped  by  the  cer- 
tificate as  against  those  who  might  have  purchased  from  that  person  on  the 
faith  of  that  certificate.  See  Simm  v.  Anglo-American  Telegraph  Co.,  5  Q.  B. 
D.  188;  49  L.  J.  (Q.  B)  392.  For  other  illustrations  of  the  doctrine  of 
estoppel  by  conduct  see  \Vebb  i'.  Ilerne  Bay  Commissioners,  L.  E..  5  Q  B  642 ; 
39  I^  J.  (Q.  B  )  221 ;  Ashpitel  v.  Bryan,  32  L.  J.  (Q.  B.)  91 ;  33  lb.  328 ; 
Phillips  V.  im  Thurn,  L.  R.  1  C  P.  463;  35  L.  J.  (C.  P.)  220;  Carr  v.  London 
and  Northwestern  Railway  Co.,  L.  R.  10  C.  P.  307;  44  L.  J.  (C.  P  )  109; 
Coventry  v.  Great  Eastern  Railway  Co,  11  Q.  B.  D.  776;  52  L.  J.  (Q.  B.) 
695.  The  student  is  also  referred  to  2  Smith's  L.  C,  notes  to  Doe  v.  Oliver, 
pp.  879-912,  8th  ed. 

(i)  3  App.  Cas.  1004,  1026  ;  48  L.  J.  (Ch.)  179,  189.  This  case  affirmed  In 
re  British  Farmers'  Pure  Linseed  Cake  Co.,  7  Ch.  D.  533;  47  L.  J.  (Ch.)  415, 
where  the  C.  A.  held  that  a  company  having  issued  certificates  that  certain 
shares  were  fully  paid  up,  were  afterwards  estopped,  as  was  also  the  liquidator 
of  the  company,  from  showing  that  nothing  had  been  paid,  as  against  a  pur- 
chaser for  value  without  notice  of  any  irregularity. 

nental  Bank  v.  Bank  of  Commonwealth,  50  N.  Y.  575.  Although  there  is  a 
seeming  conflict  in  the  decisions,  yet  the  decided  weight  of  autnority  is  that  a 
party  is  not  estopped  by  his  acts  or  declarations  from  showing  the  truth,  unless 
such  acts  or  declarations  were  intended  to  influence  the  conduct  of  another,  or 
he  had  reason  to  believe  they  would :  Kuhl  v.  Mayor,  23  N.  J.  Eq.  84. 
Silence  alone  will  not  postpone  unless  in  cases  where  it  is  a  fraud ;  but  positive 
acts  of  encouragement  bar  the  assertion  of  a  right  even  though  they  were 
done  with  no  fraudulent  intent :  Maple  v.  Kussart,  53  Pa.  St.  348  ;  Chapman 
V.  Chapman,  59  lb.  214.  A  party  has  no  right,  in  his  dealings  with  another, 
to  state  a  fact  to  be  true,  which  he  does  not  know  to  be  true,  and  which  fact 
may  influence  the  conduct  of  the  other  party.  If  such  a  fact  be  stated  to  ob- 
tain a  benefit  at  the  expense  of  the  other  party  and  to  his  prejudice,  and  it 
appears  that  there  was  no  reasonable  or  probable  ground  for  a  belief  in  the 
existence  of  such  fact,  the  inference  is  that  there  was  no  belief,  and  the  state- 
ment under  such  circumstances  has  the  effect  of  and  may  be  properly 
treated  as  a  fraud  :  Nugent  v.  Cincinnati  R.  R.  Co.,  2  Disn.  302 ;  Rice  i'.  Bunce, 
49  Mo,  231.  See  further  as  to  estoppels  in  pais:  Heath  v.  Derry  Bank,  44  N. 
H.  174;  Judevine  v.  Goodrich,  35  Yt.  19;  Shaw  v.  Beebe,  lb.  205;  Wooley  v, 
Edson,  lb.  214;  Lesley  v.  Johnson,  41  Barb.  (N.  Y.)  359;  Whitacre  i-.  Culver, 
8  Minn.  135 ;  Hazleton  v.  Batchelder,  44  N.  11.  40 ;  Spiller  v.  Scribner,  36  Yt. 
245;  Mason  i-.  William.s,  8  Jones  (Law)  478 ;  Edwards  v.  Evans,  16  Wis.  181 ; 
Martin  v.  Zellerback,  38  Cal.  300 ;  Simpson  v.  Pearson,  31  Ind.  1 ;  Austin  v. 
Thomson,  45  N.  H.  113;  Cain  v.  Busby,  30  Ga.  714;  Martin  v.  Vox  Co.,  19 
Wis.  552 ;  Casco  Bank  v.  Keene,  53  Maine,  103 ;  Garlinghouse  v.  Wbitwell,  51 

39 


29  ON   CONTRACTS   BY    DEED.  [lECT.  I. 

such  and  such  things  do  exist,  and  you  may  act  upon 
the  basis  that  they  do  exist/  and  the  other  man  does 
really  act  upon  that  basis,  it  is  of  the  very  essence  of 
justice  that  between  those  two  parties  their  rights 
should  be  regulated  not  by  the  real  state  of  the  facts, 
but  by  that  conventional  state  of  facts  which  the  two 
parties  agree  to  make  the  basis  of  their  action  ;  and  that 
is  what  is  meant  by  estoppel  in  pais." 

The  next  peculiarity  in  a  contract  by  deed  is  its 
effect  in  creating  a  merger.  This  happens  when  an 
engagement  has  been  made  by  way  of  simple  contract, 
that  is,  by  words  in  writing  not  under  seal,  and  after- 
wards the  very  same  {k)  engagement  is  entered  into  be- 
tween the  same  parties  by  a  deed.  When  this  happens, 
the  simple  contract  is  merged,  lost,  sunk,  as  it  were,  and 
swallowed  up  in  that  under  seal,  and  becomes  totally 
extinguished  (/).  Suppose,  for  instance,  I  give  my 
creditor  a  promissory  note  for  £50,  and  then  a  bond  for 
the  same  demand,  the  note  is  lost,  swallowed  up  in  the 
bond,  and  becomes  totally  extinct  and  useless  [m).  Or, 
if  a  devisee,  in  trust  to  sell  lands  and  pay  debts  of 
the  devisor  out  of  the  proceeds,  borrow  money  for 
r*'^01  *^^^^*'  purpose,  and  by  indenture  between  him 
and  the  lender  charges  the  land  with  the  amount, 
and  covenants  to  pay  the  money  borrowed  out  of  such 
money  as  shall  come  to  his  hands  as  such  trustee,  the 
claim  of  the  lender  is  upon  the  covenant,  and  the  simple 
contract  which  arose  from  the  borrowing  is  sunk  in  the 
special  agreement  (n).     But  the  engagement  by   deed 

(i)  See  Yates  v.  Aston,  4  Q.  B.  (45  R  C.  L.  K.)  182. 

(I)  Price  V.  Moulton,  20  L.  J.  (C.  B.^  102;  10  C.  B.  (70  E.  C.  L.  R.)  561. 

(ot)  Bayley  on  Bills,  6th  edition,  3o4. 

(n)  Matthew  v.  Blackmore,  20  L.  J.  (Ex.)  150;  1  H.  &  N.  76. 

Barb.  208 ;  Eidgway  v.  Morrison,  28  Ind.  201 ;  Moore  v.  Bowman,  47  N.  H. 
494 ;  Darrah  v,  Bryant,  56  Pa.  8t.  G9 ;  Young  v.  Foute,  43  111.  33 ;  M'Cabe  v. 
Baney,  32  Ind.  309.— 8. 

-     40 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  30 

must  be  so  completely  identical  with  that  by  the  simple 
contract,  that  the  remedy  upon  the  deed  must  be  co- 
extensive with  the  remedy  upon  the  simple  contract,  else 
there  is  no  merger  (o)}     Thus,  where  a  banker  takes 

(o)  Ansell  v.  Baker,  15  Q.  B.  (69  E  .C.  L.  K.)  20.  See  Boaler  v.  Mayor,  34  L.' 
J.  (C.  P.)  230.  I 

^  Curson  v.  Monteiro,  2  Johns.  308 ;  Bray  v.  Bates,  9  Mete.  250 ;  and  see 
poAsim  the  notes  to  Cumber  v.  Wane,  in  1  Smith's  Lead.  Cas.  The  operation 
of  this  principle  of  law,  and  the  distinction  between  a  merger  and  a  satisfac- 
tion of  a  debt,  have  been  thus  ably  pointed  out  by  Gibson,  C.  J.,  in  Jones  v. 
Johnson,  3  W.  &  S.  277:  "There  is  a  substantial  distinction,  wliich  I  have 
not  seen  particularly  noticed,  between  cases  of  extinguishment  by  merger  of 
the  security,  and  cases  of  extinguishment  by  satisfaction  of  the  debt.  These 
classes,  though  depending  on  different  principles,  have  usually  been  con- 
founded, and  hence  a  perceptible  want  of  precision  in  the  language  of  tl»ose 
who  have  written  or  spoken  of  them.  In  the  first  of  them  the  original 
security  is  extinguished,  but  the  debt  remains :  in  the  second,  the  debt  as  well 
as  the  security  is  extinguished  by  the  acceptance  of  another  debt  in  payment 
of  it.  Extinguishment  by  merger  takes  place  between  debts  of  different 
degrees,  the  lower  being  lost  in  the  higher,  and,  being  by  act  of  law,  it  is 
dependent  on  no  particular  intention ;  extinguishment  by  satisfaction  takes 
place  indifferently  betwen  securities  of  the  same  degree  or  of  different 
degrees,  and,  being  by  act  of  the  parties,  it  is  the  creature  of  their  will.  No 
expression  of  intention  would  control  the  law  which  proliibits  distinct  securi- 
ties of  different  degrees  for  the  same  debt ;  for  no  agreement  would  prevent  an 
obligation  from  merging  in  a  judgment  on  it,  or  passing  in  rem  judicalam. 
Neither  would  an  agreement,  however  explicit,  prevent  a  promissory  note 
from  merging  in  a  bond  given  for  the  same  debt  by  tlie  same  debtor ;  for,  to 
allow  a  debt  to  be,  at  the  same  time,  of  different  degrees,  and  recoverable  by 
a  multiplicity  of  inconsistent  remedies,  would  increase  litigation,  unsettle 
distinctions,  and  lead  to  embarrassment  in  the  limitation  of  actions,  and  the 
distribution  of  assets.  But  as  the  existence  of  a  promissory  note  as  a  concur- 
rent security  for  a  book  debt  produces  no  such  consequences,  it  operates  no 
extinguishment  by  act  of  the  law ;  and  it  depends  on  tlie  a'jsent  of  the  parties, 
tacit  or  explicit,  whether  the  new  evidence  of  the  debt  is  accepted  in  dis- 
charge of  the  old  one.  It  is  true  there  are  presumptions  which  operate  even 
in  cases  of  intention,  as  pri?nd /acie  evidence  on  the  one  side  or  the  other; 
for  instance,  that  a  bond  given  by  a  stranger  after  the  debt  incurred  was 
accepted  as  collateral  security.  These,  however,  are  legal  presumptions  of 
mere  facts  to  be  drawn  by  the  jury  under  the  direction  of  the  court,  and  not, 
as  in  merger,  presumptiones  juris  et  dejure,  which  are  so  absolute  that  they  can- 
not be  rebutted. 

"  But,  merger  takes  place  only  where  the  debt  is  one,  and  the  parties  to  the 
eecarities  are  identical.  Hence  there  is  no  extinguishment  where  a  stranger 
gives  bond  for  a  simple  contract  debt,  or  confesses  a  judgment  for  a  debt  by 
epecialty.    In  either  case  the  original  debt  may  be  extinguished  by  the  subse- 

41 


30  ON   CONTEACTS   BY   DEED.  [lECT.  I. 

from  a  customer  and  a  surety  a  bond  for  payment  of  all 
sums  advanced,  or  to  be  advanced,  to  the  customer,  there  is 
no  merger,  for  the  special  contract  differs  from  the  simple 
in  securing  the  payment  of  other  and  additional  moneys, 
and  also  from  another  and  additional  person  {p).     So 

ip)  Holmes  v.  Bell,  3  M.  &  G.  213;  Norfolk  Eailway  Co.  v.  M'Namara,  3 
Ex.  628. 

quent  one,  but  not  by  merger,  which  works  a  dissolution  not  of  the  debt,  but 
of  the  original  security,  whose  existence  sinks  into  that  of  the  succeeding 
one,  and  for  that  purpose  the  union  must  be  so  intimate  that  the  one  cannot 
be  separated  from  the  other.  In  a  case  of  merger,  therefore,  the  debt  is  the 
same,  though  the  old  evidence  of  it  melts  into  the  new  one,  and  the  creditor 
merely  gains  a  higher  security  without  having  an  indivisible  debt  of  different 
degrees,  but  such  a  result  is  not  obtained  where  the  debt  is  compounded  of 
new  responsibilities,  as  it  must  be  where  all  the  parties  were  not  originally 
bound.  When  the  debtor  is  bound  with  a  stranger,  or  for  a  different  sum, 
his  responsibility  is  changed  in  more  respects  than  the  quality  of  the  security. 
The  difference,  on  the  whole,  consists  in  this,  that  in  a  case  of  merger  there  is 
a  change  only  of  the  security ;  but,  in  a  case  of  satisfaction  by  substitution, 
there  is  a  cliange  of  the  debt." 

But  although  the  intention  of  the  parties  cannot  prevent  the  operation  of 
a  merger  when  a  higher  security  is  taken  for  a  lower  one,  on  the  ground  that 
there  cannot  be  two  distinct  liabilities  for  the  same  debt,  yet  it  is  also  undoubt- 
edly settled  that  it  may  be  shown  that  the  higher  security  is  taken  as  col- 
lateral for  the  payment  of  the  lower,  that  is  to  say,  that  it  is  a  new  security 
for  a  new  debt,  intended  to  protect  tlie  first :  Yates  v.  Aston,  4  Q.  B.  (45  E. 
C.  L.  K.)  196;  Ansell  v.  Baker,  15  lb.  (G9  E.  C.  L.  E.)  20;  Eailway  Co.  v. 
M'Namara,  3  Exch.  627;  U.  S.  v.  Lyman,  1  Mas.  505;  Averill  v.  Loucks,  6 
Barb.  470 ;  Butler  v.  Miller,  5  Den.  159 ;  although  the  presumption  where 
the  bond  is  between  the  same  parties,  and  for  the  same  sura,  is  that  the  new 
security  was  taken  as  a  satisfaction :  Frisbie  v.  Lamed,  21  Wend.  450 ;  Stewart's 
Appeal,  3  W.  &  S.  476;  Bond  v.  Aitkcn,  6  lb.  165;  Butler  v.  Miller,  supra; 
Price  V.  Moulton,  2  Eng.  L.  &  Eq.  E.  307. 

A  very  common  instance  of  the  operation  of  merger  occurs  in  the  sale  of 
real  estate,  when  by  the  acceptance  of  the  deed  which  consummates  the 
transaction  the  articles  of  agreement  are  annulled:  Howes  v.  Barker,  3 
Johns.  506  ;  [loughtaling  v.  Lewis,  10  Johns.  299 ;  Wilson  v.  M'Neal,  10  Watts, 
427  ;  Creigh  v.  Beelin,  1  W.  &  S.  83 ;  Williams  v.  Morgan,  15  Q.  B.  (69  E.  C.  L.  E.) 
782 ;  unless  in  case  of  fraud  or  mistake :  Lee  v.  Dean,  3  Whart.  316 ;  .Jenks  v.  Fritz, 
7  W.  &  S.  201 ;  or  imless  part  of  the  consideration  should  be  the  future  perform- 
ance of  certain  stipulations  in  the  articles,  in  which  case  the  deed  may  be  con- 
sidered not  so  much  a  merger  of  the  original  contract  as  a  part  performance  of  it : 
Selden  v.  Williams,  9  Watts,  12  ;  Brown  v.  Moorhead,  8  S.  &  E.  569.  In  the 
latter  case,  however,  it  is  said  that  to  rebut  the  presumption  that  the  law 
would  otherwise  make  (viz.,  that  of  *he  merger),  the  intention  to  the  con- 
trary must  be  clear  and  manifest :  Seitzinger  v.  Weaver,  1  Eawle,  385. — E. 

42 


LECT.  I.]       ON  CONTKACTS  BY  DEED.  30 

also  when  two  out  of  three  simple  contract  debtors  gave 
a  specialty  security  for  the  debt,  it  was  held,  that  the 
simple  contract  liability  was  not  merged  in  the  specialty, 
and  that  an  action  lay  on  the  simple  contract  (q). 

Another  peculiar  incident  to  a  contract  by  deed  is,  that 
its  obligation  cannot  be  got  rid  of  by  any  matter  of  in- 
ferior degree :  thus,  a  verbal  license  *will  not  r^o-. -i 
exempt  a  man  from  liability  for  breach  of  his 
covenant  (r).  Thus  in  West  v.  Blakeway  (s),  a  tenant 
had  covenanted  not  to  remove  a  greenhouse,  and  it  was 
held  no  defence  for  him  against  an  action  for  so  doing, 
that  he  had  his  landlord's  subsequent  permission  so  to 
do,  that  permission  not  being  shown  to  have  been  under 
seal.  "  It  is  a  well-known  rule  of  law,"  said  the  Lord 
Chief  Justice,  "  that  unumquodque  Ugamen  dissolviiur 
eodem  ligamine  quo  et  ligatur.  This  is  so  well  estab- 
lished," continued  his  Lordship,  "  that  it  appears  to  me 
unnecessary  to  refer  to  cases.  I  will  mention  only 
Kogers  v.  Payne  {t),  which  was  an  action  of  covenant 
for  the  non-payment  of  money ;  the  defendant  pleaded 
a  parol  discharge  in  satisfaction  of  all  demands.  It 
was  held  upon  demurrer  that  the  covenant  could  not  be 
discharged  without  deed,  and  Blake's  Case  {u)  was 
cited."  ^ 

{q)  Sharp  v.  Gibhs,  C.  P.  12  W.  E.  711. 

(r)  See  Cocks  v.  Nash,  9  Bing.  (23  E.  C.  L.  E.)  341 ;  Wood  v.  Leadbitter,  13 
M.  &  W.  838. 

(s)  2  M.  &  Gr.  (40  E.  C.  L.  E.)  729 ;  Doe  dem.  Muston  v,  Gladwin,  6  Q.  B. 
(51  E  C.  L.  E.)  9o3. 

(0  2  Wils.  376. 

(m)  6  Co.  Eep.  43  b.  See  also  Harris  v.  Goodwyn,  2  M.  &.  Gr.  (40  E.  C.  L. 
E.)  405.     See  Nash  v.  Armstrong,  30  L.  J.  (C.  P  )  286. 

*  West  V.  Blakeway  must  be  considered  as  laying  down  a  more  rigid  rule 
than  has  been  observed  on  this  side  of  the  Atlantic,  where  there  have  been 
many  decisions  to  the  effect  that  a  parol  dispensation  with  the  performance  of 
a  sealed  contract  is  valid,  and  similar  in  its  effects  to  a  license  to  exercise 
dominion  over  land,  which,  while  unrevoked,  is  a  justification  for  any  acts 
done  under  its  authority),  upon  the  ground  that  although  the  contract  itself 

43 


81  ON   CONTRACTS    BY    DEED.  [lECT.  I 

It  is  another  advantage  of  a  contract  by  deed  over  a 
simple  contract  (x),  that  althougli,  as  is  well  known,  a 
chose  in  action  is  not  assignable  at  common  law  (?/),  in- 
p.-j-oQ-i  dependently  of  the  Judicature  Act,  *1873  (30  & 
37  Vict.  c.  66),  yet,  where  the  contract  is  one  be- 
tween landlord  and  tenant,  and  is  such  as  in  its  nature 
to  affect  directly  the  estates  of  either  of  them,  which  in 
law  is  called  running  with  the  land  {z),  the  benefit  and 

(x)  Standen  v.  Christmas,  16  L.  J.  (Q.  B  )  265 ;  10  Q.  B.  (59  E.  C  L.  R.) 
135;  Brydges  v.  Lewis,  3  Q.  B.  (43  E.  C  L.  R.)  603. 

(y)  Com.  Dig.  Assignment,  C.  1,  lb.  Grant,  D.  But  see  now  36  &  37  Vict. 
c.  66,  s.  25,  sub-s.  (6),  and  post,  Lect.  VII.  "  Assignment  of  Contracts." 

(z)  Spencer's  Case,  5  Co.  Rep.  16;  1  Smith,  L.  C.  68,  8th  ed. ;  Vernon  v. 
Smith,  5  B.  &.  Aid.  (7  E.  C.  L.  R.)  1. 

cannot  be  dissolved  unless  by  an  instrument  of  equal  solemnity  as  that  creat- 
ing it,  yet  that  the  rights  proceding  from  it  may  be  varied  or  released  by 
parol :  United  States  v.  Howell,  4  Wasli.  C.  C.  620 ;  Fleming  v.  Gilbert,  3 
Johns.  528  ;  Langworthy  v.  Smith,  2  Wend.  587  ;  Dearborn  v.  Cross,  7  Cow.  48  ; 
Leavitt  v.  Savage,  16  Me.  72  ;  Marshall  v.  Craig,  1  Bibb,  379 ;  and  such  was 
the  view  taken  in  the  earlier  English  cases :  1  Roll.  Abr.  453,  pi.  5 ;  lb.  455, 
pi.  1 ;  Year  Book,  2  Hen.  VI,  37  ;  Ratclifff.  Pemberton,  1  Esi).  35;  Blackwell 
r.  Na.sh,  1  Str.  535 ;  Jones  v.  Barkley,  Dougl.  684 ;  in  which  case  it  was  held 
that  a  tender  of  performance  and  waiver  of  it  (the  evidence  of  which  must 
always  rest  in  parol )  were  equivalent  to  actual  performance.  In  Cordwent  v. 
Hunt,  8  Taunt.  596,  it  was,  however,  held  that  in  an  action  of  covenant  for  not 
erecting  a  threshing-mill,  it  was  no  defence,  that  the  omission  to  do  so  was 
at  the  special  request  of  the  plaintiff.  Tliis  case  was  followed  by  West  v. 
Blakeway,  supra,  where  the  defendant  had,  in  a  lease  executed  to  him  by  the 
plaintiff's  testator,  covenanted  not  to  remove  any  buildings  erected  on  the 
premises  during  the  term,  and  the  breach  alleged  was  that  he  had  permitted 
the  removal  of  a  greenhouse,  to  wliich  the  defendant  pleaded  that  after  the 
execution  of  the  lease,  the  term  had  been  assigned  to  a  third  person,  to  whom 
the  plaintifl"'s  testator  promised  that  if  he  would  erect  the  greenhouse,  he 
should  have  liberty  to  remove  it  at  the  expiration  of  the  lease.  Under  these 
circumstances,  as  has  been  well  observed  of  this  case,  there  can  be  no  quest  ioa 
that,  upon  familiar  principles,  a  parol  license  to  remove  the  greenhouse 
would  have  protected  a  party  in  so  doing,  if  the  greenhouse  had  at  the  time 
of  the  license  been  in  actual  existence,  and  in  the  possession  of  the  lessor  ;  and 
the  effect  of  the  decision  was  therefore  to  deny  the  operation  of  such  a  license, 
as  a  protection,  while  the  title  to  tlie  greenhouse  rested  on  an  executory  con- 
tract, thereby  holding  that  the  right  of  a  party  can  be  greater  under  a  con- 
tract wliile  yet  executory  than  after  it  had  passed  into  execution  and  conferred 
an  actual  title  :  2  American  Lead.  Cas.  758,  License.  Such  a  course  of  deci* 
Bion,  however,  has  not,  as  we  have  seen,  been  followed  iu  this  country. — B. 

44 


LECT.  I.]       ON  CONTRACTS  BY  DEED.  32 

the  burthen  of  that  contract  when  under  seal  will,  with- 
out having  regard  to  the  last  mentioned  statute,  if  the 
estate  of  either  is  assigned,  pass  with  the  reversion  or 
the  term  to  the  new  landlord  or  to  the  new  tenant. 
This  is  partly  by  force  of  the  common  law,  and  partly 
by  force  of  the  stat.  32  Hen.  VIII.  c.  34  (a),  an  Act 
passed  shortly  after  the  dissolution  of  the  monasteries, 
and  rendered  necessary  thereby.  For,  as  by  the  common 
law,  neither  the  benefit  nor  the  burthen  of  a  contract 
could  in  general  be  transferred  by  assignment,  it  be- 
came necessary,  when  so  many  reversions  of  estates  held 
by  farmers  and  tenants,  for  lives  or  years,  were  alien- 
ated, to  give  to  the  purchasers  or  alienees  the  same 
rights  against  the  farmers  or  tenants  as  the  lessors  had ; 
and  the  legislature  naturally  and  equitably  went  on  to 
give  corresponding  rights  to  the  farmers  and  tenants. 

Again,  a  deed  formerly  had  this  further  advantage  of 
a  simple  contract,  that,  in  case  of  the  death  of  the  party 
bound  by  it,  it  charged  his  heirs  (if  the  deceased  bound 
his  heirs  by  using  words  for  *that  purpose  in  the  j-.^^-. 
deed)  to  the  extent  of  any  assets  that  might  '-  -' 
have  descended  to  them  {b). 

You  will  find  the  nature  of  the  heir's  liability  fully 
explained  in  the  notes  to  Jefferson  v,  Morton  (c).  If, 
indeed,  the  debtor  had  devised  the  land  away,  instead 
of  allowing  it  to  descend  to  his  heir,  the  creditor  could 
not  at  common  law  have  sued  the  devisee.  However, 
by  stat.  3  Wm.  III.  c.  14,  usually  called  the  Statute  of 
Fraudulent  Devises,  the  devisee  was  made  liable  as  well 
as  the  heir.  But,  as  this  statute  did  not  provide  for  the 
case  of  there  being  no  heir,  the  land  in  that  event  going 
to  the  lord  by  escheat,  if  there  was  no  devisee,  or  to  the 

(a)  Thursby  v.  Plant,  1  Wms.  Saund.  240. 
(6)  Cora.  Dig.  Covenant,  C.  2,  lb.  Assets,  A, 
(c)  2  Wms.  Saund.  6. 

45 


tS3  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

devisee  if  one  was  designated  by  the  will,  a  distinction 
which  it  is  sometimes  important  to  observe  [d),  it  was 
repealed,  and  its  enactments  repeated,  making  the  dex 
visee  in  such  case  liable,  with  several  other  improve- 
ments, by  Stat.  1  Wm.  IV.  c.  47,  usually  called  Sir 
Edward  Sugden's  Act  (<?). 

While  on  this  subject,  it  may  as  well  be  mentioned, 
that,  although  the  right  of  bringing  an  action  at  common 
law  against  the  heir  or  devisee  was  limited  to  specialty 
j.^  creditors,  yet,  by  stat.  *3  &  4  Wm.  IV.  c.  104, 
'-  -J  the  simple  contract  creditors  had  a  remedy  against 
the  real  estate  of  the  deceased  in  equity,  as  they  now 
have  in  the  Chancery  Division  of  the  High  Court  (/). 
Their  claims,  however,  were,  by  the  express  enactment 
of  the  statute,  postponed  to  those  of  creditors  by  deed 
in  which  the  heirs  of  the  deceased  were  mentioned. 
And  by  this  Act  lands  escheating  for  want  of  heirs  are 
made  assets.  (^). 

In  the  administration  of  the  personal  effects,  also,  the 
speciality  creditors  used  to  have,  as  you  are  probably 
aware,  a  priority  over  those  by  simple  contract  (h)} 

These  advantages,  however,  are  now  no  longer  given 

(d)  Hunting  v.  Sheldrake,  9  M.  &  W.  256. 

(e)  See  Hunting  v.  Sheldrake,  9  M.  &  W.  263.  On  the  construction  of 
statute  3  W.  &  M.  c.  14,  you  may  see  Farley  v.  Briant,  3  A.  &  E.  (30  E.  C.  L. 
B.)  839. 

(/)  36  &  37  Vict.  c.  66  (Judicature  Act,  1873),  s.  34. 

(g)  Evans  v.  Brown,  5  Beav.  114;  Cummins  v.  Cummins,  3  J.  &  L.  64. 

(A)  Pinchorns'  Case,  9  Co.  Rep.  88  b. 

*  A  striking  difference  has  existed  between  the  course  of  legislation  on  the 
different  sides  of  the  Atlantic,  with  respect  to  the  liability  of  estates  of  dece- 
dents for  the  payment  of  their  debts,  and  although  the  rules  in  the  different 
States  must  necessarily  be  local  in  their  application,  yet  it  may,  in  general,  ba 
said  that  in  this  country  lands  are  liable  for  the  debts  of  a  decedent,  whether 
due  by  matter  of  record,  specialty,  or  simple  contract,  and  that  in  the  two  latter 
cases,  although  they  create  no  lien  during  the  debtor's  life,  yet  by  his  death 
their  quality  is  changed,  and  they  become  liens  on  the  real  estate,  which  de- 
scends to  the  heir,  or  passes  to  the  devisee,  subject  to  the  payment  of  the  debts 
of  the  ancestor,  according  to  the  local  laws  of  the  State. — r. 

46 


LECT.  I.]  ON   CONTRACTS   BY   DEED.  34 

by  a  deed,  either  in  the  case  of  realty  or  personalty ; 
for,  by  32  &  33  Vict.  c.  46,  sec.  1,  in  the  administration 
of  the  estate  of  every  person  dying  on  or  after  the  1st 
of  January,  1870,  the  specialty  and  simple  contract 
creditors  stand  in  equal  degree ;  but  by  the  proviso  of 
that  section  the  Act  is  not  to  affect  any  lien  charge  or 
other  security  which  any  creditor  may  hold  or  be  en- 
titled to  for  the  payment  of  his  debts. 

The  occasions  on  which  for  the  most  part  a  deed  is 
necessary  must  now  be  mentioned.  It  will  be  recol- 
lected that  all  property  is  in  its  nature  ^tangible  p.^r^^--, 
or  intangible,  or,  as  it  is  called  in  law,  corporeal  •-  -" 
or  incorporeal.  Real  property  of  the  corporeal  kind 
being  capable  of  actual  delivery  may,  by  the  common 
law,  be  aliened  or  transferred  by  delivery  alone  without 
deed,  and  is  therefore  said  to  lie  in  livery ;  while  that  of 
the  incorporeal  kind,  being  incapable  of  delivery,  re- 
quires some  other  mode  to  be  used  for  authenticating  its 
alienation  or  transfer,  which  mode  is  a  deed  (i),  and 
therefore  such  property  is  said  to  lie  in  grant  [k).  Al- 
though the  older  authorities  speak  of  incorporeal  in- 
heritances, there  is  no  doubt  that  the  principle  does  not 
depend  on  the  quantity  of  interest  granted  or  trans- 
ferred, but  on  the  nature  of  the  subject-matter :  a  right 
of  common,  for  instance,  which  is  a  j)rofit  a  prendre,  or 
a  right  of  way,  which  is  an  easement  or  right  in  nature 
of  an  easement,  can  no  more  be  granted  or  conveyed  for 
life  or  years  without  a  deed  than  in  fee  simple   (1). 

(i)  Co.  Litt.  9  a ;  Hewlins  v.  Shippam,  3  B.  &  C.  (10  E.  C.  L.  R.)  221 ;  Bac. 
Abr.,  Grant,  E. 

(k)  lb.;  2  Bl.  Com.  310  ad  317;  Shep.  Touch.  228-230;  Sugd.  Vend.  125; 
Eann  v.  Hughes,  7  T.  R.  350,  n. 

(l)  Wood  V.  Leadbitter,  13  M.  &  W.  838 ;  Peny  v.  Fitzhowe,  8  Q.  B.  (55  E. 
C.  L.  R.)  757 ;  Mayfield  v.  Robinson,  7  Q.  B.  (53  E.  C.  L.  R.)  486 ;  Worsley 
V.  South  Devon  Railway,  20  L.  J.  (Q.  B.)  254 ;  16  Q.  B.  (71  E.  C.  L.  R.)  539 ; 
Taplin  v.  Florence,  20  L.  J.  (C.  P.)  137  ;  10  C.  B.  (70  E.  C.  L.  R.)  744 ;  Hewitt 
V.  Isham,  21  L.  J.  (Ex.)  35 ;  7  Ex.  77. 

47 


35  ON   CONTRACTS   BY   DEED.  [lECT.  I. 

Thus,  in  Wood  v.  Leadbitter,  just  cited,  a  ticket  of  ad- 
mission to  the  Grand  Stand  at  Doncaster  to  see  the 
^  races,  issued  by  the  steward,  and  for  which  the 
L  -•  *liolder  had  paid  a  guinea,  was  held,  not  being 
under  seal,  to  convey  to  him  no  right  to  be  there,  and 
no  remedy  for  having  been  put  out.  For  the  transfer, 
therefore,  of  incorporeal  property,  a  deed  is  necessary. 

As  a  general  rule,  chattels  real  and  personal  of  tangi- 
ble or  corporeal  natures  may,  at  common  law,  be  granted 
without  deed  (m).  And,  although  an  estate  of  inherit- 
ance or  freehold  cannot  be  granted  upon  condition  with- 
out deed  {n),  yet  a  chattel,  real  or  personal,  may  be  so 
granted  by  mere  parol  (o). 

There  is  also  a  great  difference  between  the  effect  of 
a  gift  of  chattels  by  mere  word  of  mouth,  and  a  gift 
of  chattels  by  deed.  In  the  former  case,  after  the 
gift  and  before  something  has  been  done  or  said  by  the 
donee  to  show  his  acceptance  of  the  thing  given,  the 
gift  is  revocable  (p).  But  if  the  gift  be  by  deed,  it 
vests  in  the  donee  upon  the  execution  of  the  deed,  and 
is  irrevocable  by  the  donor  until  it  is  actually  disclaimed 
by  the  donee.  After  such  execution,  and  before  such 
disclaimer,  the  estate  is  in  the  donee  without  any  actual 
delivery  of  the  chattel  given  (q). 

r^on-i  *It  is,  however,  necessary  to  bear  in  mind  that 
the  common  law  has  been  much  altered  in  these 
respects  by  stat.  8  &  9  Vict.  c.  106,  s.  3,  by  which 
feoffments,  partitions,  exchanges,  leases  required  by  law 
to  be  in  writing,  assignments  of  chattel  interests,  and 

(m)  Shep.  Touch.  231 ;  Bac.  Abr.,  Grant,  E. 

(ti)  Litt.  3G5. 

(o)  lb.;  Beeves  v.  Capper,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  136;  Florj  p. 
Denny,  21  L.  J.  (Ex.)  223 ;  7  Ex.  581. 

{p)  2  Rolle's  Abr.  62 ;  14  Vin.  Abr.  123. 

\q)  Perkins'  Grant,  57 ;  Com.  Dig.  Biens.  52 ;  2  M.  «&  G.  691,  note  a ;  Riggei* 
V.  Evans,  24  L.  J.  (Q.  B.)  305 ;  5  E.  &  B.  (85  E.  C.  L.  R.)  367. 
48 


LECT.  I.]  O'S    CONTRACTS    BY    DEED.  37 

surrenders  in  writing  of  all  interests  in  tenements  and 
hereditaments  not  being  such  as  might  have  been  created 
without  writing,  made  after  the  1st  of  October,  1845, 
with  some  exceptions  unimportant  for  our  present  pur- 
pose, are  void  at  law,  unless  made  by  deed. 

A  deed  is  also  necessary  for  authorizing  an  agent  to 
execute  a  deed  for  another  (r)}  It  is  also,  as  will  here- 
after appear,  in  general  necessary  to  a  contract  by  a 
corporation. 

Patents  for  inventions  which  have  now  become  a  very 
important  class  of  property,  seem  by  the  stat.  46  &  47 
Vict.  c.  57,  to  be  assignable  only  by  deed  or  will  (s), 
and  such  assignment  must  be  perfected  by  entry  on  the 
register  of  proprietors  {t).  But  it  is  remarkable,  and 
worthy  of  attention,  that  a  copyright  in  any  book  within 
the  Copyright  Act,  5  &  G  Vict.  c.  45,  may  under  sect. 
13  of  that  Act,  be  assigned  by  entry  made  in  the  Book 
of  Registry  kept  at  Stationers'  Hall  of  the  assignment, 
and  such  assignment  so  entered  is  of  the  same  force  and 
effect  *as  if  it  had  been  made  by  deed.  A  deed  r^ocn 
is  rendered  necessary  by  the  Merchant  Shipping 
Act,  1854,  to  make  a  valid  transfer  of  a  registered  ship, 
or  any  share  therein  to  a  person  qualified  to  be  owner  of 
a  British  ship  {u).^ 

(r)  Steiglitz  v.  Egginton,  1  Holt.  N.  P.  C.  141 ;  Harrison  v.  Jackson,  7  T.  K. 
207. 

(s)  46  &  47  Vict.  c.  57  (Patents,  Designs,  and  Trade  Marks  Act,  1883), 
Sched.  I.,  Form  D. 

(t)  See  Patents,  &c.,  Act,  1883,  s.  87. 

(«)  17  &  18  Vict.  c.  104,  s.  55,  Sched.  E. 

'  An  authority  under  seal  is  necessary  to  authorize  an  agent  to  execute  a 
sealed  instrument :  Kowe  v.  Ware,  30  Ga.  278 ;  Harshaw  v.  M'Kesson,  65  N 
C.  688.  Where  an  agent,  having  only  parol  authority  to  bind  his  principal, 
executes  a  contract  under  seal,  if  not  essential  to  the  validity  of  it,  it  should 
be  regarded  as  mere  surplusage  and  the  contract  held  good  as  a  simple  con- 
tract: Long  V.  Hartwell,  34  N.  J.  116.     [See  also  note  2,  p.  *6.]— s. 

'  By  the  laws  of  the  United  States  patents  are  assignable  "  by  an  instrument 
in  writing  "  either  as  to  the  entire  United  States  or  any  specified  part  thereof. 

4  49 


38  ON    CONTRACTS    BY    DEE]).  [lECT.  I. 

Lastly,  with  regard  to  tlie  remedy  upon  a  contract  by 
deed :  wherever  a  promise  is  made  by  deed,  the  per- 
formance may  be  enforced  by  an  action.  But  the 
remedy  must  be  pursued  within  twenty  years  (a;),  except 
in  cases  of  disability  by  reason  of  infancy,  coverture, 
lunacy,  or  absence  beyond  seas  (y),  such  being  the 
period  fixed  by  3  &  4  Wm.  IV.,  c.  42,  s.  3,^  which, 
being  later  in  date,  though  passed  in  the  same  session 
with  3  &  4  Wm.  IV.,  c.  27,  is  held  to  have  superseded 
r*QQi  some  ^inconsistent  provisions  contained  in  that 
statute  (z). 

Having  thus  touched  on  the  general  division  of  Con- 

{x)  But  now  the  remedy  on  a  covenant  in  a  mortgage  deed  to  pay  principal 
and  interest  must  be  pursued  within  twelve  years,  as  such  a  covenant  has  been 
held  to  come  within  37  &  38  Vict.  c.  57  (Real  Property  Limitation  Act, 
1874),  s.  8,  which  imposes  the  limitation  of  twelve  years  on  actions  and  suits 
for  the  recovery  of  money  charged  on  land :  Sutton  v.  Sutton,  22  Ch.  Div. 
511 ;  52  L.  J.  (Ch.)  333.  And  a  collateral  bond  to  secure  a  mortgage  debt  is 
equally  within  that  section,  so  that  the  remedy  on  such  a  bond  must  be  pur- 
6ued  within  twelve  years  also :  Fearnside  v.  Flint,  22  Ch.  Div.  579 ;  52  L.  J. 
(Ch.)  479.  Similarly  an  action  on  a  covenant  to  pay  rent  would  also  seem  to 
be  an  action  to  recover  rent  within  s.  1  of  the  same  Act,  which  imposes  the 
same  limitation  of  twelve  years  on  such  an  action.  And  in  computing  tne 
twelve  years  in  actions  under  s.  1,  s.  4  enacts  that  no  time  is  to  be  allowed  for 
absence  beyond  seas. 

{y)  See  last  note. 

(z)  See  Strachan  v.  Thomas,  12  A.  &  E.  (40  E.  C.  L.  R.)  536 ;  Paget  v. 
Foley,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  679. 


Such  assignment  is  void  as  to  any  subsequent  bond  fide  purchaser  or  mortgagee 
unless  recorded  in  the  I'atent  Office  within  three  months  from  its  date :  Rev. 
Stat.  I  4898.  Copyrights  are  assignable  "by  any  instrument  of  Avriting," 
which  must  be  recorded  within  sixty  days  of  its  execution  in  the  office  of  the 
Librarian  of  Congress  ;  otherwise  it  will  be  void  as  above :  lb.  ^  4955.  No 
bill  of  sale,  mortgage,  hypothecation,  or  conveyance  of  any  vessel,  or  part  oi 
any  vessel,  of  the  United  States,  shall  be  valid  against  any  person  other  than 
the  grantor  or  mortgagor,  his  heirs  and  devisees,  and  persons  having  actual 
notice  thereof,  unless  recorded  in  the  office  of  the  collector  of  the  customs 
where  such  vessel  is  registered  or  enrolled :  lb.  §  4192. 

^  By  these  statutes  a  positive  bar  is  interposed  to  a  recovery  upon  specialities 
after  twenty  years.  Before  their  passage,  there  was  only  the  common  law 
presumption  of  payment  or  performance,  which  was  liable  to  be  rebutted  by 
testimony,  and  in  this  country  it  is  believed  that  statutes  similar  to  that  of  3 
&  4  Will.  IV.,  have  not  been  generally  enacted. — R. 

50 


LECT.  I.J       ON  CONTRACTS  BY  DEED.  39 

tracts  into  tliose  of  Record,  by  Deed,  and  by  Simple 
Contract,  and  explained  the  nature  of  a  deed,  and  the 
formalities  attendhig  its  execution — having  pointed  out 
the  distinction  between  the  absolute  delivery  of  a  deed 
and  the  conditional  one  of  an  escrow,  the  distinction 
between  a  deed  poll  and  indenture,  the  peculiar  privi- 
leges of  a  contract  by  deed,  whether  in  respect  of  the 
consideration,  the  estoppel  it  creates,  or  the  means  by 
which  its  obligation  is  determined — having  pointed  out 
the  occasions  on  which,  for  the  most  part,  a  deed  is 
necessary,  the  remedy  by  which  its  non-performance  is 
complained  of  in  a  Court  of  law,  and  the  time  of  limita- 
tion within  which  that  remedy  is  to  be  pursued,  it 
remains  to  point  out,  in  a  similar  manner,  the  peculiari- 
ties attending  Simple  Contracts.  This  will  be  done  in 
the  next  Lecture. 


51 


[*40]  *LECTUEE  TI. 

THE  NATURE  OF  SIMPLE  CONTRACTS  ; OF  WRITTEN  CON- 
TRACTS;  PATENT     AND     LATENT      AMBIGUITIES; 

WHEN    WRITING    MAY    BE    QUALIFIED  BY    EVIDENCE 
OF  USAGE  ; THE  STATUTE  OF  FRAUDS. 

In  the  last  lecture  I  compressed  the  observations  I 
had  to  make  on  the  general  nature  of  Contracts 
under  Seal.  I  now  arrive  at  the  class  denominated 
Simple  Contracts,  which  comprises  all  of  a  degree 
inferior  to  deeds,  whether  they  be  verbal  or  written. 
For  though,  as  I  shall  presently  explain  to  you,  there  is, 
in  practice,  a  very  wide  distinction  between  written  and 
verbal  contracts;  yet  in  theory  the  law  of  England 
acknowledges  no  difference  between  them  at  all,  but 
denominates  them  all  by  the  same  term,  Simple  Con- 
tracts {a).  And  indeed  they  are  so  far  alike  that  they 
all,  whether  verbal  or  written,  are  subject  to  those  marks 
of  inferiority  to  contracts  by  deed  which  you  heard 
described  in  the  last  lecture. 

Thus,  they  do  not  create  an  estoppel.  They  are 
p^i^-]  capable  of  being  put  an  end  to  without  the 
^solemnity  of  a  deed.  They  form  no  ground  of 
action  (except  an  administration  action  in  the  Chancery 
Division)  against  the  heir  or  devisee,  even  though  he  be 
expressly  named  in  them  ;  and  they  require  a  considera- 
tion to  support  and  give  them  validity,  though,  as  I 
shall  have  occasion  to  explain  in  a  future  lecture,  there 
is  one  case,  even  among  simple  contracts,  in  which  the 
consideration  need  not  be  shown,  but  is  presumed  to 
exist,  unless  its  existence  can  be  disproved.     In  these 

(o)  See  Beckham  v.  Drake,  9  M.  &  W.  79. 

£2 


LECT.  II.J  OF    WRITTEN   CONTRACTS.  41 

respects,  all  simple  contracts  are  like  one  another.  But 
there  are  two  great  practical  differences  or  distinctions 
between  verbal  and  written  contracts,  which  it  is  neces- 
sary to  explain  at  some  length  to  you. 

The  first  concerns  the  mode  in  which  they  are  to  he 
proved. 

The  second  depends  on  the  answer  to  the  question, 
Does  the  subject-matter  of  the  contract,  by  law,  require  a 
writing,  or  not  f 

Now,  as  to  the  first  distinction,  concerning  the  mode 
in  which  written  contracts  are  to  be  proved,  it  results 
from  an  inflexible  rule  of  the  law  of  evidence,  that,  when 
a  contract  is  reduced  into  writing,  it  shall  be  proved 
by  the  writing,  and  by  that  only.  For  the  written 
instrument,  being  constituted  by  the  parties  the  exposi- 
tor of  their  intentions,  must,  in  order  to  effectuate  that 
object,  be  the  only  instrument  of  evidence  to  prove 
their  intentions.  If,  instead  of  being  constituted  by  the 
parties  the  expositor  of  their  intentions,  a  written  in- 
strument *is  constituted  such  by  a  positive  rule  p^o-i 
of  law,  the  same  result  must  follow.  Thus, 
when,  by  the  Statute  of  Frauds,  operation  is  given  to  a 
written  instrument  exclusively,  the  object  of  the  statute 
would  be  defeated  if  parol  evidence  were  admitted  in 
lieu  of  the  required  writing,  or  in  any  way  to  alter  it. 
To  admit  oral  evidence  as  a  substitute  for  instruments 
to  which,  by  reason  of  their  superior  authenticity  and 
permanent  qualities,  an  exclusive  authority  is  given  by 
the  parties,  would  be  to  substitute  the  inferior  for  the 
superior  degree  of  evidence,  conjecture  for  fact,  and 
presumption  for  the  highest  degree  of  legal  authority. 
It  would  substitute  loose  recollection  and  uncertainty  of 
memory  for  the  most  sure  and  faithful  memorials  which 
human  ingenuity  can  devise  or  the  law  adopt  {b),  and 

(6)  Countess  Rutland's  Case,  5  Rep.  26.     Stark.  Evid.  4th  ed.  651. 

53 


42  OF   WRITTEN   CONTRACTS.  [lECT.  II. 

would  introduce  a  dangerous  laxity  and  uncertainty  as 
to  all  titles  to  property,  which,  instead  of  depending  on 
certain  fixed  and  unalterable  memorials,  would  then  be 
made  to  depend  upon  the  frail  memories  of  witnesses, 
and  be  perpetually  liable  to  be  impeached  by  fraudulent 
and  corrupt  practices.  And  where  the  law,  for  reasons 
of  policy,  requires  written  evidence,  to  admit  oral 
testimony  in  its  place  would  be  to  subvert  the  rule 
itself  (c). 

rt,Ao-i  In  applying  this  rule,  therefore,  no  *contem- 
poraneous  verbal  expressions  must  be  allowed  to 
be  engrafted  upon  the  writing,  so  as  to  alter  it  by 
adding  to,  or  taking  away  from  its  import.  You  will 
find  this  principle  laid  down  and  enlarged  upon  in  all 
the  treatises  on  Evidence  (d);  indeed,  there  is  hardly 
any  branch  of  the  law  which  has  given  rise  to  so  much 
subtle  and  anxious  discussion  and  inquiry  as  this  single 
rule  of  the  law  of  Evidence.  The  late  Vice-Chancellor, 
Sir  James  Wigram,  has,  in  one  of  the  ablest  treatises 
existing  in  our  law  libraries,  discussed  its  applications  to 
the  single  head  of  Devises. 

You  must,  therefore,  take  care  not  to  be  misled  as  to 
the  meaning  of  the  rule ;  for,  as  may  be  expected,  it 
involves  nice  distinctions.  It  would  be  impossible  to  do 
complete  justice  to  these  within  the  limits  of  this  work ; 
still,  however,  I  think  that  I  can  point  out  their  nature, 
so  far  as  to  give  a  notion  of  the  sort  of  questions  which 
are  likely  to  arise,  sufiicient  to  prevent  surprise  by  such 
questions,  should  they  occur  in  practice. 

Now,  the  rule  itself,  as  I  have  said,  is,  that  no  parol, 
that  is,  verbal,  evidence  of  what  took  place  at  the  time  of 


(c)  lb.  649.     Marshall  v.  Lynn,  6  M.  &  W.  109. 

{d)  See,  for  instance,  Starkie  on  Evid.  4tli  ed.  648,  where  the  application  of 
this  rule  is  very  fully  discussed ;  Taylor  on  Evidence,  7th  ed.  Part  II.  c.  xix, 
"Admissibility  of  Parol  Evidence  to  affect  written  instruments." 
54 


LECT.  II.]  OF    WRITTEN   CONTRACTS.  43 

making  a  ^vTitten  contract^  is  admissible  for  the  purpose 
of  contradicting  or  altering  it ;  for  instance,  if  A.  con- 
tract in  writing  with  B.,  "^to  deliver  him  100  r*44-| 
quarters  of  wheat  within  three  months,  at  so 
much  per  quarter,  no  evidence  would  be  admissible  to 
show  that  it  was  agreed,  at  the  time,  that  the  wheat 
should  be  delivered  only  in  case  of  the  arrival  of  a  ship 
which  the  vendor  expected  from  Odessa  with  wheat  on 
board ;  for  that  would  be,  by  parol  evidence,  to  turn  an 
absolute  written  contract  into  a  conditional  one  (e).  So, 
if  a  promissory  note  or  bill  of  exchange  (whicli,  not  being 
under  seal,  is,  you  must  be  aware,  a  simple  contract), 
were  made  pa;yable  on  one  day,  verbal  evidence  could 
not  be  admitted  to  show  that  it  was  meant  to  be  payable 
upon  another  (/).  So  also  where  a  written  contract  for 
the  sale  of  goods  did  not  specify  any  time  for  delivering 
them,  the  vendor  was  not  allowed  to  give  evidence  that 
at  the  time  of  forming  the  contract  it  was  made  a  con- 
dition of  the  sale,  that  the  purchaser  should  immediately 
take  them  away  {g).     In  like  manner,  where  the  written 

(e)  See  Wallis  v.  Littell,  31  L.  J.  (C.  P.)  100. 

(/)  See  Free  v.  Hawkins,  8  Taunt.  (4  E.  C.  L.  E.)  92.  For  other  examples 
of  the  application  of  the  same  principle  in  the  case  of  Bills  of  Exchange  and 
Promissory  Notes,  see  also  Hoare  v.  Graham,  3  Camp.  57  ;  Hogg  v.  Snaith,  1 
Taunt.  347 ;  Moseley  v.  Hanford,  10  B.  &  C.  (21  E.  C.  L.  K.)  729 ;  Foster  v. 
Jolly,  1  C.  M.  &  R.  703 ;  Adams  v.  Wordley,  1  M.  &  W.  374 ;  Brown  v.  Lang- 
ley,  4  M.  &  G.  (43  E.  C.  L.  R.)  466 ;  Besant  v.  Cross,  20  L.  J.  (C.  P.)  173 ;  10 
C.  B.  (70  E.  C.  L.  R.)  895 ;  Abrey  v.  Crux,  L.  R.  5  C.  P.  37  ;  39  L.  J.  (C.  P.)  9 

{g)  Greaves  v.  Ashlin,  3  Camp.  426. 

*  These  rules  of  course  apply  exclusively  to  written  and  not  parol  contracts. 
An  illustration  of  this  occurred  in  the  case  of  an  auctioneer,  who,  at  the  time 
of  a  sale,  verbally  declared  a  variation  from  the  printed  catalogue ;  namely, 
that  goods  stated  therein  to  be  silver  were  only  plated,  and  so  sold  them ; 
the  actual  contract  being  a  parol  one,  evidence  of  the  parol  statement  was 
held  admissible  to  explain  it:  Eden  v.  Blake,  13  M.  &  W.  614;  but  if  the 
auctioneer  had  signed  an  agreement  which  referred  to  or  formed  part  of  the 
unaltered  catalogue,  then  his  parol  declaration  of  the  alteration  could  not  be 
given  in  evidence,  as  it  would  vary  a  written  contract :  Shelton  v.  Livius,  2 
C.  &  J.  411.— 8. 

55 


44  OF   WRITTEN   CONTRACTS.  [lECT.  II. 

pi=4^1    contract  mentioned  no  time  for  ^payment,  and 
where,  consequently,  the  law  implies  the  term  of 
immediate  payment,  the  Court  held  this  to  be  the  mean- 
ing of  the  written  contract,  and  would  not  allow  it  to  be 
proved  that  by  the  usual  course  of  dealing  between  the 
parties,  six  months'  credit  was  to  be  given  (Ji).     A  de- 
fendant bargained  by  parol  with  the  plaintiff,  who  was 
a  baker,  to  supply  him  with  flour  of  the  same  quality  as 
that  which  he  supplied  to  another  customer,  one  M. ; 
and  the  defendant  sent  the  plaintiflp  as  a  note  of  the 
contract  the  following  memorandum,  signed  by  himself: 
"Sold  to  Mr.  H.  (the  plaintiff)  25  sacks  whites  X  S,  at 
68s.  per  sack  net,"  omitting  to  state  that  the  quality 
should  be  the  same  as  that  supplied  to  M. ;  and  after- 
wards delivered  flour  corresponding  to  the  note.     The 
flour  being  inferior  to  that  supplied  to  M.,  the  plaintiff 
sued  him  for  his  breach  of  contract.     But  the  Court  of 
Common  Pleas  considered  that  parol  evidence  was  not 
admissible  to  show  that  the  plaintiff  had  bargained  for 
other  flour  than  that  mentioned  in  the  written  note. 
"  The  contract,"  said  3Jaule,  J.,  "  whatever  it  was,  was 
reduced  into  writing,  and  when  that  is  so  we  must  look 
at  the  writing  and  at  nothing  else,  even  though  terms 
previously  agreed  upon  by  the  contracting  parties  be 
omitted  from  it"  (i).     And  *as  verbal  evidence 
L      -^    of  what  took  place  at  the  time  of  making  a  writ- 
ten contract  cannot  be  given  to  show  that  the  meaning 
of  it  is  different  from  what  its  words  import,  so  neither 
can  evidence  that  the  parties  have  acted  upon  the  sup- 
position of  its  being  different  have  that  effect  (j)} 

(h)  Ford  V.  Yates,  2  M.  &  G.  549.     See  per  Parke,  B.,  2  Ex.  99. 
(i)  Harnor  v.  Groves,  24  L.  J.  (C.  P.)  53;  15  C.  B.  (80  E.  C.  L.  E.)  667; 
Ilotson  V.  Browne,  30  L.  J.  (C.  P.)  106. 

ij)  Giraud  v.  Richmond,  15  L.  J.  (C.  P.)  180  ;  2  C.  B.  (52  E.  C.  L.  R.)  836, 

s.  a 

^  A  vast  number  of  authorities  upon  this  much  discussed  rule  of  evidence 

56 


LECT.  II.]  OF   WKITTEN    CONTEACTS.  46 

But  though  you  cannot  be  allowed  to  show  that  the 
meaning  of  a  written  contract  was  varied  at  the  time  of 

will  be  found  in  the  digests  and  elementary  treatises,  among  which  may  he 
particularly  noticed  the  notes  of  Messrs.  Cowen  and  Hill,  to  the  American 
edition  of  Phillips  on  Evidence,  and  the  fifteenth  chapter  of  Professor  Green- 
leafs  treatise  on  that  subject.  A  few  only  of  the  instances  of  the  application 
or  non-application  of  the  rule  can  be  noticed  here.  It  has  been  enforced  in 
the  exclusion  of  evidence  to  show  that  a  signature  in  one's  own  name  was  in- 
tended to  be  merely  as  agent:  Stackpole  v.  Arnold,  11  Mass.  27 ;  Hancock  v. 
Fairfield,  30  Me.  299 ;  that  a  written  agreement  to  deliver  wheat  to  A.  was 
modified  by  a  parol  direction  to  deliver  it  to  B. :  Wolfe  v.  Myers,  3  Sand.  7  ; 
Babcock  v.  May,  4  Hamm.  334 ;  that  a  written  agreement  for  the  purchase  of 
land,  whereby  the  purchaser  was  not  to  cut  timber,  was  varied  by  a  parol 
license  to  cut  it :  Pierrepont  v.  Barnard,  5  Barb.  364 ;  that  a  check  purporting 
to  be  for  so  much  money  was  designed  to  be  payable  in  the  notes  of  a  certain 
bank:  Pack  v.  Thomas,  13  Sm.  &  M.  11;  or  on  a  contingency:  Moseley  v. 
Hanford,  10  B.  &  C.  (21  E.  C.  L.  E.)  729;  Cunningham  v.  Wardell,  3  Fair. 
466 ;  Erwin  v.  Saunders,  I  Cow.  249 ;  that  a  particular  ship  was  verbally 
excepted  from  a  policy  of  insurance  on  the  fleet  to  which  she  belonged : 
Weston  V.  Emes,  1  Taunt.  115 ;  that  goods  to  be  stowed  under  deck  were  ver- 
bally allowed  to  be  stowed  on  deck  :  Creery  v.  Holly,  14  Wend.  26  (it  would 
have  been  different  had  the  evidence  been  to  prove  a  custom  of  storage  in  that 
manner:  Baxter  v.  Leland,  1  Blatch.  526  ;  see  infra,  note  to  page  *56).  The 
rule,  however,  does  not  exclude  the  testimony  of  experts  to  aid  in  the 
reading  of  the  instrument,  or  to  explain  a  local  or  technical  meaning :  Wig- 
ram  on  Wills,  48;  Sheldon  v.  Benham,  4  Hill,  129  ;  Smith  v.  Wilson,  3  B.  & 
Ad.  (23  E.  C.  L.  E.)  728  ;  Clayton  v.  Gregson,  5  Ad.  &  £1.  (31  E.  C.  L.  R.) 
302;  The  King  v.  Mashiter,  6  lb.  (33  E.  C.  L.R.)  153  ;  Peisch  v.  Dickson,  1 
Mason,  11 ;  unless,  indeed,  the  words  have  a  known  legal  meaning:  Frith  v. 
Barker,  2  Johns.  335.  Nor  does  it  exclude  tlie  admission  of  the  contempor- 
aneous writings  relating  to  the  subject-matter:  Bowerbank  v.  Monteiro,  4 
Taunt.  846;  Hunt  v.  Livermore,  5  Pick.  395;  Bell  v.  Bruen,  1  How.  169; 
Thomas  v.  Austin,  4  Barb.  265  ;  nor  evidence  to  show  the  circumstances  sur- 
rounding the  parties  at  the  time  :  Haigh  v.  Brooks,  10  Ad.  &  Ell.  (37  E.  C.  L. 
R.)  309;  Goldshede  v.  Swan,  1  Exch.  154;  Bainbridge  v.  Wade,  16  Q.  B.  (71 
E.  C.  L.  R.)  98;  Smith  v.  Bell,  6  Pet.  75;  Wooster  v.  Butler,  13  Conn.  309; 
Knight  V.  New  England  Worsted  Co.,  2  Cush.  271-283  ;  Lowry  v.  Adams,  22 
Vt.  1 60 ;  for  all  this,  it  is  said,  tends  to  explain,  and  not  to  contradict  the 
writing.  And  it  is  obvious  that  evidence  is  admissible  to  show  that  the 
writing  never  was  of  any  validity,  as  by  reason  of  fraud,  illegality,  duress, 
incapacity  of  parties,  &c.,  for  those  grounds,  as  has  been  shown  in  the  pre- 
ceding chapter,  vitiate  the  contract  ah  initio,  and  to  exclude  evidence  of  this, 
would  be  to  promote  and  not  to  repress  injustice. 

But  upon  the  ground  that  parol  evidence  is  admissible  to  explain  in  cases 
of  fraud,  the  courts  of  Pennsylvania  have  gone  very  far,  and  have  in  effect 
taken  the  position  that  when  the  written  contract  has  been  entered  into  with 
the  understanding  that  it  is  to  be  used  in  a  particular  way,  or  with  a  particular 

57 


46  OF   WRITTEN   CONTRACTS.  [lECT.  II. 

making  it,  by  words  merely  spoken,  there  are  some  cases 
in  which  you  may  show  that   it  was   subsequently  so 


qualification,  it  is  a  fraud  to  violate  this  understanding.  And  hence  many 
cases  have  sanctioned  the  admission  of  evidence  to  show  what  was  the  under- 
standing at  the  time  the  contract  was  made.  "  If  the  rule  is,"  it  was  said,  in 
Bollinger  v.  Eckert,  16  S.  &  R.  424,  "that  parol  evidence  is  admissible  to  cor- 
rect mistake  or  fraud,  and  if  the  real  contract  of  the  parties  is  not  expressed 
in  the  writing,  this  must  arise  from  mistake  or  fraud.  We  seem  now  to  have 
settled  down  in  this ;  whatever  material  to  the  contract  was  expressed  and 
agreed  to  when  the  bargain  was  concluded  and  the  article  drawing,  may,  if 
not  expressed  in  the  article,  be  proved  by  parol."  "  Ever  since  the  case  of 
Hurst  V.  Kirkbride,  cited  in  1  Binn.  616,"  it  was  said  in  Oliver  v.  Oliver,  4 
Rawle,  141,  "it  has  been  the  practice  to  receive  parol  evidence  of  what 
passed  at  the  time  of  the  execution  of  deeds,  or  at  and  before  the  execution. 
When  the  fairness  of  the  transaction  is  impeached,  it  is  immaterial  whether 
the  party  intended  a  fraud  at  the  time  of  the  contract,  or  whether  the  fraud 
consists  in  the  fraudulent  use  of  the  instrument:  Hultz  v.  Wright,  16  S.  &  R. 
345 ;  Lyon  v.  Huntington  Bank,  14  lb.  283 ;  Thompson  v.  White,  1  Dall.  424, 
are  of  this  description  ;"  and  many  other  cases  have,  while  regretting  the  ex- 
tent of  the  innovation,  followed  it :  Partridge  v.  Clarke,  4  Pa.  St.  166  ;  Renshaw 
V.  Gans,  7  lb.  119  ;  Rearick  v.  Swinehart,  11  lb.  238.  But  in  a  somewhat  later 
case  on  the  subject,  Rearick's  Executors  v.  Rearick,  15  lb.  66,  the  Court 
evinced  the  strongest  disposition  to  sanction  the  admission  only  of  contempora- 
neous evidence,  and  to  apply  the  strict  rule  in  the  exclusion  of  parol  statements 
occurring  previously  to  the  transaction.  "  In  the  somewhat  unsteady  course  of 
decision  upon  this  vexed  point  of  evidence,"  said  Bell,  J.,  who  delivered  the 
opinion  of  the  Court,  "  if  any  principle  has  been  adhered  to  with  tenacity,  it 
is,  that  oral  proof  to  vary  or  affect  a  written  instrument  must  be  confined  to 
what  occurred  at  the  execution  of  it:  Bollinger  v.  Eckert,  16  S.  &  R.  424; 
Stine  V.  Sherk,  1  W.  &  S.  195.  Even  thus  restricted,  it  is  acknowledged  to 
be  full  of  danger.  Were  the  door  opened  still  wider  for  the  admission  of  all 
the  loose  dicta  of  the  parties,  running,  it  might  be,  as  in  this  instance,  through 
a  long  course  of  years,  the  flood  of  evil  would  become  so  great  as  to  sweep 
before  it  every  barrier  of  confidence  and  safety,  which  human  forethought, 
springing  from  experience,  is  so  sedulous  to  raise  against  the  treachery  of 
memory  and  the  falsehood  of  men.  To  avoid,  therefore,  what  would  really  be 
a  social  calamity,  it  is  recognized  as  a  settled  maxim,  that  oral  evidence  of  an 
agreement  or  understanding  between  parties  to  a  deed  or  other  written  instru- 
ment, entertained  before  its  execution,  shall  not  be  heard  to  vary  or  materially 
aflfect  it :  Cozens  v.  Stevenson,  5  S.  &  R.  421 ;  Gilpins  v.  Consequa,  1  Pet.  C.  C. 
85 ;  s.  c.  3  Wash.  C.  C.  184  ;  M'Kennan  v.  Henderson,  1  P.  &  W.  417.  Accord- 
ingly, the  settled  rule  is,  that  when  a  contract  has  been  reduced  to  writing,  it 
is  understood  as  expressing  the  final  conclusions  of  the  contracting  parties, 
and  fully  accepted  as  merging  all  prior  negotiations  and  understandings, 
whether  agreeing  or  inconsistent  with  it :  Eighty  v.  Shorb,  3  P.  &  W.  450 ; 
Monongahela  Nav.  Co.  v.  Fen  Ion,  4  W.  &  S.  207,  209.  If  any  dicta  or  even 
decisions  in  hostility  to  this  axiom  are  to  be  found,  they  must  be  ascribed  to 
58 


T^CT.  II.]  OF    WRITTEN    CONTRACTS.  46 

7aried.  These  are  cases  in  wliicli  the  contract,  although 
written,  is  of  a  description  whicli  is  not  required  by  law 

the  strong  desire  we  are  all  apt  to  be  swayed  by,  to  defeat  some  strongly  suspected 
fraud  in  the  particular  case.  But  these  occasional  aberrations  but  lead  to 
the  more  emphatic  reannunciation  of  a  principle  found  to  be  essential  to  the 
maintenance  of  that  certainty  in  human  dealings,  without  which  commerce  must 
degenerate  into  chicanery,  and  trade  become  but  another  name  for  trick." 

The  line  of  decision  taken  in  Pennsylvania  admitting  such  evidence  on  the 
ground  of  fraud  has  not,  it  is  believed,  been  generally  observed  elsewhere,  and 
in  a  note  to  Woolam  v.  Ilearn,  2  White's  Equity  Cases,  501,  Am.  ed.,  the 
student  will  find  the  authorities  collected  and  commented  on. — r. 

"When  a  contract  to  do  certain  work  is  put  in  writing,  and  no  time  fixed  for 
the  completion  of  the  work,  or  the  payment  of  the  same,  the  inference  of  law 
is,  that  the  work  is 'to  be  paid  for  when  the  labor  is  done  ;  and  an  action  for 
labor  and  service  cannot  be  sustained  therefor,  until  the  work  is  completed  or 
the  contract  in  some  legal  way  terminated.  Parol  evidence,  showing  a  verbal 
agreement  as  to  the  time  of  payment,  made  when  the  contract  was  signed 
cannot  be  admitted:  Thompson  v.  Phelan,  22  N.  H.  339.  See  to  the  same 
effect,  Whitney  v.  Lowell,  33  Me.  318 ;  Conant  v.  Dewey,  21  N.  H.  353 ;  Rails- 
buck  V.  Turnpike  Co.,  2  Ind.  656  ;  Norton  v.  Coons,  6  N.  Y.  33.  A  mere  re- 
ceipt for  money,  or  other  things,  it  has  always  been  held,  may  be  explained  or 
contradicted  by  parol:  O'Brien  v.  Gilchrist,  34  Me.  554;  Edgerlyv.  Emerson, 
23  N.  H.  555;  Wadsworth  v.  AUcott,  6  N.  Y.  64;  Deloach  v.  Turner,  6  S.  C. 
117;  Weatherford  v.  Farrar,  18  Mo.  474 ;  Richardson  f.  Beede,  43  Me.  161; 
Street  i-.  Hall,  29  Vt.  165;  Henry  f.  Henry,  11  Ind.  236;  Hawley  v.  Bader, 

15  Cal.  44;  White  r.  Merrell,  32  111.  511.  Parol  evidence  is  admissible  to 
vary  tlie  consideration  expressed  in  a  deed  or  to  show  that  it  has  not  been 
paid :  Swaffbrd  v.  Whipple,  3  Iowa,  261 ;  Hall  v.  Perry,  lb.  579 ;  Holbrook  v. 
Holbrook,  30  Vt.  432;  Gordon  v.  Gordon,  1  ]Metc.  (Ky.)  285;  Andrews  v. 
Andrews,  12  Ind.  348 ;  Jones  v.  Jones,  lb.  389 ;  Swope  v.  Forney,  17  lb.  385 ; 
Speer  v.  Speer,  14  N.  J.  Eq.  '240 ;  Buckley's  Appeal,  48  Pa.  St.  491 ;  Gibson 
t;.  Fifer,  21  Tex.  260. 

The  following  cases  may  be  referred  to  as  illustrative  of  the  general  rule 
and  its  many  exceptions. 

Prior  correspondence  or  contemporaneous  verbal  agreements  are  not  admis- 
sible to  contradict,  vary  or  materially  affect  the  terms  of  a  written  contract : 
Richardson  v.  Comstock,  21  Ark.  69 ;  Oskaloosa  College  v.  StaflTord,  14 
Iowa,  152 ;  Hoxie  v.  Hodges,  1  Oreg.  251 ;  Foy  v.  Blackstone,  31  HI.  538  ; 
Pilmer  v.  Branch  of  State  Bank,  16  Iowa,  321  ;  Herndon  v.  Henderson,  41 
Miss.  584.  In  the  absence  of  fraud  or  mistake  of  fact  parol  evidence  is  not 
admissible  to  contradict  or  vary  the  terms  of  a  written  contract,  though  the 
party  lias  contracted  under  a  mistake  of  law:  Potter  v.  Sewall,  54  Me.  142 ;  but 
it  has  been  held  admissible  to  show  fraud  or  mistake :  Pendexter  v.  Carleton, 

16  N.  H.  482 ;  Mallory  v.  Leach,  35  Vt.  156  :  Corlies  v.  Howe,  11  Gray,  125 ; 
Koop  V.  Handy,  41  Barb.  454 ;  Hathaway  v.  Brady,  23  Cal.  121  ;  Van  Buskirk 
V.  Day,  32  111.  200;  Fisher  v.  Deibert's  Adm.,  54  Pa.  St.  460  ;  Murray  v.  Dake, 
46  Cal.  644.    When  an  indorsement  of  a  note  is  in  blank  to  show  the  actual 

59 


46  OF   WRITTEN   CONTRACTS.  [lECT.  II. 

to  be  reduced  into  writing  at  all.  Thus,  if  in  considera- 
tion of  £50,  I  promise  to  go  to  York  on  the  1st  day  of 
January,  and  that  contract  be  reduced  to  writing,  verbal 
evidence  would  not  be  admissible  to  show  that  it  was 
agreed,  at  the  same  time,  that  the  contractee  was  to  be 
at  liberty,  on  payment  of  £10,  to  substitute  Edinburgh 
for  York ;  but  verbal  evidence  would  be  admissible  to 

agreement  as  to  the  indorsement,  as  that  it  was  to  be  without  recourse,  on  the 
ground  that  to  fill  the  blank  in  any  other  manner  is  a  fraud :  Harrison  v.  Mc- 
Kim,  18  Iowa,  485.  So  to  identify  the  subject-matter  or  parties :  Noonan  v. 
Lee,  2  Black  (S.  C.)  499;  Baldwin  v.  Bank,  1  Wall.  (S.  C.)  234;  Brooks  v. 
Aldrich,  17  N.  H.  443 ;  Peabody  v.  Brown,  10  Gray,  45 ;  Morgan  v.  Spangler, 
14  Ohio  St.  102 ;  Farmers'  Co.  v.  Commercial  Bank,  15  Wis.  424 ;  Wing  v. 
Gray,  36  Vt.  261 ;  Aldridge  v.  Eshleman,  46  Pa.  St.  420  ;  Abbott  v.  Abbott,  51 
Me.  575  ;  Eugg  v.  Hale,  40  Vt.  138  ;  Locke  v.  Rowell,  47  N.  H.  46  ;  Reed  v. 
Ellis,  68  111.  206  ;  Pope  v.  Machias  Water  Power  Cb.,  52  Me.  535  ;  Marshall  v. 
Gt-idley,  46  111.  247  ;  Sargeant  v.  Solberg,  22  Wis.  132.  So  to  show  an  inde- 
pendent or  collateral  contract  or  part  not  reduced  to  writing :  Joannes  v. 
Mudge,  6  Allen,  245  ;  Koop  v.  Handy,  41  Barb.  454  ;  Weber  v.  Kingsland,  8 
Bos.  415  ;  Harbold  v.  Kuster,  44  Pa.  St.  392  ;  Sessions  v.  Peay,  21  Ark.  100 ; 
Sweet  V.  Stevens,  7  R.  I.  375  ;  Van  Buskirk  v.  Roberts,  31  N.  Y.  661  ;  Hahn  v, 
Doolittle,  18  Wis.  196  ;  Clarke  v.  Tappin,  32  Conn.  56  ;  Silliman  v.  Tuttle,  45 
Barb.  171  ;  Randall  v.  Turner,  17  Ohio  St.  262 ;  Shepherd  v.  Wysong,  3  W. 
Va.  46  ;  Branch  v.  Wilson,  12  Fla.  543 ;  Perry  v.  Central  R.  R.  Co.,  5  Cold. 
138  ;  Field  v.  Mann,  42  Vt.  61  ;  Hubbell  v.  Ream,  31  Iowa,  289  ;  Weaver  v. 
Fletcher,  27  Ark.  510  ;  Basshor  v.  Forbes,  36  Md.  154  ;  Babcock  v.  Deford,  14 
Kan.  408  ;  Polk  v.  Anderson,  16  lb.  243  ;  Malone  v.  Dougherty,  79  Pa.  St.  46. 
To  show  that  party  signed  as  surety  and  that  known  to  the  other  party:  Riley 
».  Gregg,  16  Wis.  666.  Where  a  written  contract  for  the  delivery  of  certain 
articles  on  demand  names  no  place  of  delivery,  this  may  be  afterwards  verbally 
agreed  on  by  the  parties  :  Barker  v.  Barker,  16  N.  H.  333. 

Receipts  not  under  seal  are  always  open  to  explanation  and  even  to  contra- 
diction by  parol  evidence  :  Hitt  v.  Slocum,  37  Vt.  524  ;  Dunham  v.  Barnes,  9 
Allen,  352 ;  King  v.  Mitchell,  30  Ga.  164 ;  Dunagan  v.  Dunagan,  38  lb.  554 . 
Winchester  v.  Grosvenor,  44  111.  425  ;  Dolan  v.  Freiberg,  4  W.  Va.  101  ;  White 
V.  Merrell,  32  111.  511.  The  exception  of  receipts  must  be  confined  to  such  as 
are  purelj'  receipts,  but  not  to  such  as  are  in  the  nature  of  contracts  :  Stapleton 
V.  King,  33  Iowa,  28  ;  Wilson  v.  Derr,  69  N.  C.  137.  The  rule  that  parol 
evidence  is  inadmissible  to  contradict  or  vary  the  terms  of  a  valid  written 
instrument  is  applied  only  in  suits  between  the  parties  to  the  instrument  and 
their  privies  :  Van  Eman  v.  Stanchfield,  10  Minn.  255  ;  Hughes  v.  Sandal,  25 
Tex.  162.  It  does  not  apply  to  cases  arising  between  sureties  ;  it  is  limited  to 
the  stipulations  between  the  parties  actually  contracting  with  each  other  by 
the  written  instrument :  Thomas  v.  Truscott,  53  Barb.  200  ;  Hussman  v.  Wilke, 
50  Cal.  250.— s. 

60 


LECT.  II.]  OF    WEITTEIiT   CONTEACTS.  46 

show  that  it  was  agreed  next  day,  that,  on  payment  of 
£10,  he  might,  if  he  pleased,  substitute  Edinburgh  for 
York ;  for,  as  there  is  no  rule  of  law  which  requires 
such  a  contract  to  be  reduced  into  writing,  it  might  have 
been  made  by  words  merely  spoken,  and  you  are  there- 
fore allowed  to  give  parol  evidence — not  that  the  written 

contract  did  not  contain  the  ^intention  of  the    _..,„, 

I  '•'4/  I 
parties  at  the  time  of  drawing  it  up — but  that    '-      -* 

they  subsequently  altered  a  part  of  it  by  spoken  words, 
and  so,  in  fact,  made  a  new  agreement  {h)}  This,  you 
will  observe,  is  no  violation  of  the  rule,  or  of  the  reason 
of  it,  which  is  that  what  the  parties  have  chosen  to  con- 
fide to  a  written  document,  shall  not  be  proved  or  varied 
by  a  kind  of  evidence  to  which,  as  appears  by  their  con- 
duct, they  did  not  choose  to  trust.  But  though  this  may 
be  done  where  the  contract  is  one  which  the  law  does 
not  require  to  be  in  writing,  yet  a  little  consideration 
will  show  that  where  a  writing  is  necessary,  it  cannot  be 
allowed  ;  for,  if  it  were,  the  effect  of  the  verbal  evidence 
would  be  to  turn  a  contract  which  the  law  requires  to  be 
in  writing  into  one  partly  in  writing  and  partly  in  words. 
Therefore,  in  Goss  v.  Lord  Nugent  (/),  it  was  decided 
that  a  contract  for  the  purchase  of  land  (which,  by  the 
Statute  of  Frauds,  is  required  to  be  written)  cannot  be 

{k)  Judgment  of  Court  in  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.) 
58. 

(i)  5  B.  &  Ad.  (27  E.  C.  L.  E.)  58  ;  Stowell  v.  Eobinson,  3  Bing.  N.  C.  (32 
E.  C.  L.  E.)  928. 

1  Jeffery  v.  Walton,  1  Stark.  213 ;  Wright  v.  Crookes,  1  Scott's  N.  S.  685 ; 
Cummings  v.  Arnold,  3  Mete.  486  ;  Eobinson  v.  Bachelder,  4  N.  H.  40  ; 
Keating  v.  Price,  1  Johns.  Cas.  22 ;  Dearborn  v.  Cross,  7  Cow.  50 ;  Frost  v. 
Everett,  5  lb.  497  ;  Yont^ua  v.  Nixon,  1  Pet.  C.  C.  221 ;  Boyd  v.  Bertrand,  2 
Eng.  321.— s. 

This  new  agreement,  however,  must  be  a  new  and  distinct  contract  npon  a 
new  consideration  :  Lippold  v.  Held,  58  Mo.  213 ;  Hogan  v.  Crawford,  31  Tex. 
634;  Adler  v.  Friedman,  16  Cal.  138;  Courtenay  v.  Fuller,  65  Me.  158; 
Malone  v.  Dougherty,  79  Pa.  St.  46.  It  must  be  clearly  made  out,  the  pre- 
sumption being  against  it :  McGrann  v.  North  Lebanon  E.  Co.,  29  Pa.  St.  83. 

61 


47  OF   WRITTEN   CONTRACTS.  [lECT.  TI. 

altered  by  a  verbal  arrangement,  although  made  subse- 
quently. The  same  reason  would  obviously  apply  to  a 
contract  for  the  sale  of  goods,  or  to  any  contract  required 
by  Jaw  to  be  in  writing  (m).  "Such  an  agreement  {i. 
e.,  the  one  supposed  to  be  altered  by  parol)  must,"  said 
the  Lord  Chancellor  (in  Emmet  v.  Dewhirst),  "be 
*proved  ;  it  cannot  be  proved  by  parol  evidence, 
L  -I  and  the  case  affords  no  other ;  it  cannot  there- 
fore be  proved  at  all"  {n)} 

Even  in  the  case  of  an  agreement  required  by  law  to 
be  reduced  into  writing,  parol  evidence  of  an  alteration  in 
the  writing  subsequent  to  signature  by  one  of  tlie  parties 
has  been  admitted  under  the  following  circumstances  : — 
A  memorandum  containing  proposed  terms  for  the  sale 
of  a  ship  having  been  drawn  up  by  the  vendors'  broker, 
but  not  signed,  was  sent  to  the  purchaser.     He  made 

(m)  Stead  v.  Dawber,  10  A.  &  E.  (37  E.  C.  L.  E.)  57 ;  Marshall  v.  Lynn,  6 
M.  &  W.  109. 

(n)  Emmet  v.  Dewhirst,  21  L.  J.  (Ch.)  497 ;  3  Mac.  &  G.  587,  598. 


^  Both  acts  and  words  are  inadmissible  to  vary  a  written  contract,  though  the 
parties  have  acted  on  the  verbal  alteration  for  some  years :  Giraud  v.  Rich- 
mond, 15  L.  J.  C.  P.  180.  The  same  point  was  decided,  on  the  authority  of 
Goss  V.  Lord  Nugent,  in  the  case  of  Marshall  v.  Lynn,  6  M.  &  W.  109, 
with  respect  to  a  contract  for  the  sale  of  goods  falling  within  the  operation  of 
the  same  statute.    So  in  Blood  v.  Goodrich,  9  Wend.  68. — K. 

As  shown  in  the  foregoing  notes,  the  rule  in  the  text,  at  any  rate  so  far 
as  American  law  is  concerned,  is  considerably  modified.  Though  the  gen- 
eral rule  is  undoubted,  there  are  certain  exceptions  to  it,  it  would  appear, 
which  are  well  recognized.  Thus  even  in  cases  of  contracts  falling  within 
the  statute,  subsequent  oral  agreements  have  been  upheld  when  their  effect 
was  to  discharge  the  contract  altogether  :  Robinson  v.  Page,  3  Russ.  119 ;  Rod- 
man V.  Tilley,  1  N.  J.  Eq.  320 ;  Goucher  v.  Martin,  9  Watts,  109 ;  Cummings  v. 
Arnold,  3  Mete.  486.  It  has  been  held  that  only  erfaitory  contracts  as  to 
land  can  be  so  discharged :  Goucher  v.  Martin,  swpra ;  leaner  v.  Lee,  42  Pa. 
St.  170  ;  Negley  v.  Jeffers,  28  Ohio  St.  100.  It  seems  that  mere  extension  of 
time  by  parol  agreement  is  valid:  cases  swpra;  McNish  v.  Reynolds,  95  Pa. 
St.  483;  Kimball  v.  Goodburn,  32  Mich.  12;  Melton  v.  Smith,  05  Mo.  315; 
Longfellow  t).  Moore,  102  111.289.  As  to  change  of  p^ace,  see  McMurphyv. 
Garland,  47  N.  11.  316.  The  law  on  this  whole  subject  is  doubtful ;  see 
Beed,  Statute  of  Frauds,  Chap.  xx. 

62 


LECT.  II.]  OF   WRITTEN   CONTRACTS.  48 

certain  interlineations  in  red  ink  altering  the  terms,  and 
having  signed  the  document,  returned  it  the  vendors' 
broker.  The  alterations  were  subsequently  not  ac- 
quiesced in  by  tlie  vendors,  and  were  struck  out,  and 
further  interlineations  were  made  by  the  vendors.  The 
vendors'  broker  then  signed  the  document  and  sub- 
mitted it  to  the  purchaser,  who  assented  to  the  terms  of 
it  as  it  then  stood.  It  was  held  that  though  the  con- 
tract was  one  which  was  required  to  be  in  writing  under 
the  ITth  sect,  of  the  Statute  of  Frauds,  parol  evidence 
was  admissible  to  show  that  the  j)urchaser  had  so  as- 
sented, inasmuch  as  there  never  had  been  a  contract 
between  the  parties  until  such  assent  on  his  part ;  and 
the  effect  of  the  parol  evidence  was,  therefore,  not  to 
*vary  a  written  contract,  but  merely  to  show  p^.Q-, 
what  was  the  condition  of  the  document  when  it  ^  -' 
became  a  contract  between  the  parties  (o). 

Another  celebrated  distinction  on  this  subject  is,  that 
in  a  written  contract,  or,  indeed,  in  any  other  written  in- 
strument, if  there  be  a  patent  ambiguity,  it  never  is  al- 
lowed to  be  explained  by  verbal  evidence,  although  a 
latent  ambiguity  is  so  {p).  The  meaning  of  the  expres- 
sions patent  and  latent  with  reference  to  this  subject  is 
as  follows : — 

A  patent  ambiguity  is  one  which  appears  on  the  face 
of  the  instrument  itself,  and  renders  it  ambiguous  and 
unintelligible :  as  if  in  a  will  there  were  a  blank  left  for 
the  devisee's  name  (q)  ;  or  as  if,  in  the  body  of  a  bill  of 
exchange,  it  appeared  to  have  been  drawn  for  £200,  and 

(o)  Stewart  v.  Eddowes,  L.  R.  9  C.  P.  311 ;  43  L.  J.  (C.  P.)  204. 

(p)  Bacon's  Maxims,  reg.  23.  See  Dodd  v.  Burchall,  31  L.  J.  (Ex.)  364. 
"Where,  however,  there  is  a  manifest  error  in  a  document,  the  Courts  will  put 
a  sensible  meaning  on  it  by  correcting  or  reading  the  error  as  corrected.  And 
there  is  no  distinction  in  this  ca.se  between  the  rules  of  law  and  equity.  See 
Burchell  v.  Clark,  2  C.  P.  D.  88,  97 ;  46  L.  J.  (Q.  B.,  etc.)  115,  120. 

(?)  Hunt  V.  Hort,  3  Bro.  C.  C.  311 ;  Clayton  v.  Lord  Nugent,  13  M.  &  W. 
200. 

63 


49  OF   WRITTEN   CONTRACTS.  [leCT.  II. 

in  the  margin  the  figures  usually  put  there  expressed 
that  it  was  drawn  for  £245  (r).  In  this  latter  instance 
the  Court  refused  to  admit  evidence  that  the  words  "and 
forty-five  "  had  been  omitted  by  mistake. 
r*f^m  *^  latent  ambiguity  is  where  tlie  instrument  it- 
self is  on  the  face  of  it  intelligible  enough,  but  a 
difficulty  arises  in  ascertaining  the  identity  of  the  subject- 
matter  to  which  it  applies,  as  if  a  devise  were  to  John  Smith, 
without  further  description.  In  that  case  the  devise  would 
be  intelligible  enough  on  the  face  of  it,  and  if  there 
were  only  one  John  Smith  in  being,  no  difficulty  could 
arise.  But  as  there  are  several  thousands,  it  would  be 
impossible  to  tell  which  of  them  was  meant  without  ad- 
mitting verbal  evidence,  which  would  accordingly  be  ad- 
mitted. This  would  be  what  is  called  a  latent  ambig- 
uity, because  it  would  not  appear  on  the  face  of  the 
instrument,  but  would  lie  hid  till  evidence  had  been 
produced,  showing  that  there  were  a  great  number  of 
persons  corresponding  in  name  with  the  devisee.^ 

The  force  and  application  of  this  rule,  and  the  dis- 
tinction between  these  two  kinds  of  ambiguity,  are  so 
happily  expressed  and  illustrated  in  a  judgment  of  the 
Court  of  Exchequer,  in  the  case  of  Doe  dem.  Hiscocks 
V.  Hiscocks  (s),  that,  although  that  judgment  was  given 
in  the  case  of  a  will,  it  will  be  very  useful  to  introduce 
a  portion  of  it  here.  "  The  object  in  all  cases,"  said  the 
Court,  "  is  to  discover  the  intention  of  the  testator.   The 

(r)  Saunderson  v.  Piper,  5  Bing.  N.  C.  (35  E.  C.  L.  E.)  425. 

(s)  5  M.  &  W.  363.'  See  Doe  d.  Allen  v.  Allen,  12  A.  &  E.  (40  E.  C.  L.  R.) 
451 ;  Doe  d.  Gains  v.  Rouse,  5  C.  B.  (57  E.  C.  L.  R.)  422 ;  Grant  v.  Grant,  L. 
R.  5  0.  P.  380,  727  (Ex.  Cli.) ;  39  L.  J.  (C.  P.)  140,  272. 


^  See  on  the  subject  of  patent  and  latent  ambiguity,  Campbell  v.  Johnson, 
44  Mo.  247 ;  Pollen  v.  Le  Roy,  30  N.  Y.  549 ;  Pettit  v.  Shepard,  32  N.  Y.  97 ; 
Bell  V.  Woodward,  46  N.  H.  315 ;  Piper  v.  True,  36  Cal.  606  [Aspden's  Estate, 
2  Wall.  Jr.  368].— s. 
64 


LECT.  II.]  OF    WRITTEN    COXTKACTS.  51 

first  '''and  most  obvious  mode  of  doing  this  is,  to  p..-^-. 
read  his  will  as  he  has  written  it,  and  collect  his  in-  '-  -' 
teution  from  his  words.  But,  as  his  words  refer  to  facts  and 
circumstances  respecting  his  property  and  his  family,  and 
others  whom  he  names  or  describes  in  his  will,  it  is  evi- 
dent that  the  meaning  and  application  of  his  words  can- 
not be  ascertained  without  evidence  of  all  those  facts  and 
circumstanccJs  {t).  To  understand  the  meaning  of  any 
writer,  we  must  first  be  apprised  of  the  persons  and  cir- 
cumstances that  are  the  subjects  of  liis  allusions  or 
statements,  and  if  these  are  not  fully  disclosed  in  his 
work,  we  must  look  for  illustration  to  the  history  of  the 
times  in  which  he  wrote,  and  to  the  works  of  contem- 
poraneous authors.  All  the  facts  and  circumstances, 
therefore,  respecting  persons  or  property  to  which  the 
will  relates,  are  undoubtedly  legitimate  and  often  neces- 
sary evidence,  to  enable  us  to  understand  the  meaning 
and  application  of  his  words.  Again,  the  testator  may 
have  habitually  called  certain  persons  or  things  by  pecu- 
liar names,  by  which  they  were  not  commonly  known. 
If  these  names  should  occur  in  his  will,  they  could  be  only 
explained  and  construed  by  the  aid  of  evidence,  to  show 
the  sense  in  which  he  used  them,  in  like  manner  as  if 
his  will  were  written  in  cypher  or  in  a  foreign  language. 
The  habits  of  the  testator  in  these  particulars  must 
*be  receivable  as  evidence,  to  explain  the  mean-  ^ 
ing  of  his  will.  L      J 

"  But  there  is  another  mode  of  obtaining  the  inten- 
tion of  the  testator,  wdiich  is,  by  evidence  of  his  declara- 
tions, of  the  instructions  given  for  his  will,  and  other 
circumstances  of  the  like  nature,  which  are  not  adduced 
for  explaining  the  words  or  meaning  of  his  will,  but 
either  to  supply  some  deficiency  or  remove  some  ob- 
scurity, or  to  give  some  effect  to  expressions  that  are 

(0  See  Burgess  v.  Wickham,  31  L.  J.  (Q.  B.)  17. 

5  65 


62  OF   WHITTEN   CONTRACTS.  [lECT.  II. 

unmeaning  or  ambiguous.     Now  there  is  but  one  case 
in  wliich  it  appears  to  us  that  this  sort  of  evidence  of 
intention  can  properly  be  admitted,  and  that  is  where 
the  meaning  of  the  testator's  words  is  neither  ambiguous 
nor  obscure,  and  where  the  devise  is  on  the  face  of  it 
perfect  and  intelligible,  but,  from  some  of  the  circum- 
stances  admitted   in  proof,  an  ambiguity  arises  as  to 
which  of  the  two  or  more  things,  or  which  of  the  two  or 
more  persons  (each  answering  the  words  in  his  will), 
the  testator   intended  to  express.     Thus,  if  a  testator 
devise  his  manor  of  S.  to  A.  B.,  and  has  two  manors,  of 
Korth  S.  and  South  S.,  it  being  clear  he  means  to  devise 
one  only,  whereas  both  are  equally    denoted  by   the 
words  he  has  used ;   in  that  case  there  is  what  Lord 
Bacon  calls  '  an  equivocation,'  i.  e.,  the  words  equally 
apply  to  either  manor,  and  evidence  of  previous  inten- 
tion  may   be  received  to  solve  this  latent  ambiguity; 
for  the  intention  shows  what  he  meant  to  do ;  and  when 
j-^f-o-i    you  know  that,  you  ^immediately  perceive  that 
he  has  done  it  by  the  general  words  he  has  used, 
which,  in  their  ordinary  sense,  may  properly  bear  that 
construction.     It  appears  to  us,  that,  in  all  other  cases, 
parol  evidence  of  what  was  the  testator's  intention  ought 
to  be  excluded,  upon  this  plain  ground,  that  his  will 
ought  to  be  made  in  writing ;  and  if  his  intention  cannot 
be  made  to  appear  by  the  writing,  explained  by  circum- 
stances, there  is  no  will." 

A  latent  ambiguity,  therefore,  is  where,  on  attempting 
to  carry  out  the  contract,  it  is  found  that  the  words 
used  apply  equally  to  two  or  more  different  things,  and 
then,  the  latent  ambiguity  having  been  shown  by  evi- 
dence, further  evidence  is  admissible  to  show  which  of 
them  was  the  thing  intended   (u).     Thus,  where  pre- 

(w)  See  the  judgment  of  Bovill,  C.  J.,  in  Grant  r.  Grant,  L.  K.  5  C.  P.  390; 
39  L.  J.  (C.  P.)  146. 

66 


LECT.  II.]  OF   WRITTEN   CONTRACTS.  53 

viously  to  a  contract  for  the  purcliase  of  wool  being 
reduced  into  writing,  a  conversation  had  taken  place 
between  the  buyer  and  the  seller,  in  which  the  latter  had 
said  that  he  had  a  quantity  of  wool  partly  of  his  own 
clip  and  partly  contracted  to  be  bought  of  other  persons, 
and  by  the  contract  when  reduced  to  writing,  it  appeared 
that  the  defendant  purchased  of  the  plaintiff  a  certain 
quantity  of  wool  described  therein  as  "  your  wool,"  it 
was  considered  that  evidence  of  the  conversation  was 
admissible  to  show  what  the  parties  meant  by  the  term 
"your*\vool"  (y).  "The  subject-matter  of  the  r-^^^-i 
contract,"  said  Lord  Campbell,  C.  J.,  "  was  '  your 
wool,'  and  I  am  of  opinion  that  when  there  is  a  contract 
for  the  sale  of  a  specific  subject-matter,  parol  evidence 
may  be  received  to  show  what  the  nature  of  that  subject- 
matter  was,  and  that  in  effect  may  be  by  proving  what 
was  in  the  knowledge  of  the  parties  at  the  time  of  the 
contract  being  made.  Now,  in  order  to  show  that,  it 
was  proposed  to  prove  the  conversation  between  the 
plaintiff  and  the  defendant,  in  which  it  was  mentioned 
that  the  plaintiff  had  wool  of  his  own,  and  also  that  he 
had  contracted  for  the  purchase  of  other  wool.  There 
was  knowledge  in  both  parties  of  v/hat  the  subject- 
matter  was.  There  was  an  offer  to  buy  *  your  wool ' ; 
that  was  the  specific  subject-matter  which  was  to  be 
purchased.  Then  is  there  any  difficulty  in  admitting 
what  passed  at  that  conversation  ?  I  think  that  there  is 
none.  It  is  no  part  of  the  contract,  and  is  not  adding 
to  or  varying  a  written  contract,  but  it  is  evidence 
which  enables  us  to  say  what  the  contract  referred  to. 
It  seems  that  there  was  a  reference  to  the  wool  which 
was  in  the  possession  of  the  defendant,  partly  obtained 

(r)  Macdonald  v.  Longbottom,  1  E.  &  E.  (102  E.  C.  L.  E.)  977 ;  28  L.  J. 
(Q.  B.)  293;  in  Exch.  Ch ,  1  E.  &  E.  (102  E.  C.  L.  R.)  987  ;  29  L.  J.  (Q.  B.) 
256. 

67 


54  OF   WRITTEN   CONTRACTS.  [lECT.  IT. 

from  his  own  flocks,  and  partly  that  which  he  had  pur- 
chased from  other  people." 

For  the  same  reason,  when  the  terms  of  a  written 

p., I    *contract  sio:ned  by  the  defendant  were,  "in  con- 

sideration  ot  my  entering  on  your  employ  at  such 
a  salary,"  &c.,  not  specifying  what  the  employment  was, 
evidence  that  the  defendant  being  in  the  plaintiff's  ser- 
vice, a  vacancy  in  another  department  of  his  business 
occurred,  which  the  defendant  undertook  to  fill,  was  ad- 
mitted to  show  that  it  was  this  vacancy  to  which  the 
terms  of  the  written  contract  referred  {x). 

Tliere  is  one  exception,  indeed,  engrafted  on  the  rule 
which  forbids  the  reception  of  parol  evidence  for  the 
purpose  of  qualifying  the  sense  of  a  written  contract ; 
it  occurs  where  parties  have  contracted  with  reference  to 
some  known  and  established  usage.  In  such  cases  the 
usage  is  sometimes  allowed  to  be  engrafted  on  the  con- 
tract, in  addition  to  the  express  written  terms.  When 
they  have  so  contracted,  the  reference  in  their  minds  to 
the  usage  is  similar  to  that  reference  which  exists  in  all 
men's  minds  (when  making  a  contract)  to  the  general 
law.  In  the  latter  case  they  intend  that  where  their 
contract  is  silent,  their  rights  shall  be  those  which  the 
general  law  annexes  to  the  stipulations  which  they  have 
expressed ;  and  in  the  former  they  intend  that  the  rules 
which  the  usage  of  the  place  or  trade  annexes,  shall 
regulate  their  rights  in  those  particulars  in  which  their 
agreement  is  silent.  In  both  cases  they  can  exclude  the 
r*"(^1  general  law  or  the  *usage  by  their  stipulations, 
and,  in  both,  are  liable  to  the  general  law  or  to 
the  usaofc  where  their  contract  does  not  exclude  their 
operation  (3/),  by  showing,  expressly  or  impliedly,  that 

(x)  Mumford  v.  Gething,  29  L.  J.  (C  P.)  105. 

(y)  Senior  v.  Armitage,  1  Holt,  N.  P.  (3  E.  C.  L.  R.)  197 ;  Hutton  v.  War- 
ren, 1  M.  &  W.  466. 
68 


LECT.  II.]  OF    WRITTEN    CONTEACTS.  56 

tliey  did  not  intend  to  be  bound  by  it.  The  notoriety 
of  the  custom  makes  it  part  of  the  contract.  For  the 
custom  may  be  so  universally  followed  in  the  place  or 
trade  in  which  the  contract  was  made,  that  no  one  can 
be  supposed  to  have  contracted  without  looking  upon  it 
as  part  of  his  contract  (z)} 

Upon  such  reasonings  it  was  held,  in  the  leading  case 
of  Wigglesworth  v.  Dallison  {a),  where  a  lease  of  land 
under  seal  was  made  for  a  fixed  term  of  years,  that  a 
custom  of  the  parish  in  which  the  land  lay,  that  the 
tenant  should,  after  the  expiration  of  the  term,  have  the 
way-going  crop,  was  obligatory  on  the  landlord ;  that 
custom  not  alterins;  or  contradictino;  the  a";reement  in 
the  case,  but  only  superadding  a  right  as  consequential 
to  the  taking.  Very  similar  to  this  was  the  equally 
leading  case  of  Hutton  v.  Warren  (b),  where  the  plain- 
tiff had  held  under  a  lease  by  deed  which  had  ex^^ired, 

(z)  Queen  v.  Stoke-upon-Trent,  5  Q.  B.  (48  E.  C.  L.  R.)  303. 
(a)  Dougl.  201 ;  1  Smith,  L.  C.  594,  8th  ed. 
(6)  1  M.  &  W.  4G6. 

'  A  usage  of  trade,  when  adopted  by  the  implied  understanding  of  the 
parties,  is  as  obligatory  as  if  incorporated,  provided  such  usage  is  not  repug- 
nant to  nor  inconsistent  with  the  terms  of  the  contract,  and  is  not  inconsistent 
with  existing  rules  of  law :  Appleman  v.  Fisher,  34  Md.  540  ;  Lamb  v.  Klaus, 
30  Wis.  94;  Schenck  v.  Griffin,  38  N.  J.  (Law)  462;  Insurance  Co.  v.  Wright, 
1  Wall.  (S.  C.)  45G ;  Deshler  v.  Beers,  32  111.  368  ;  Leonard  v.  Peeples,  30  Ga. 
61.  Usage  of  a  particular  trade  is  inadmissible  to  affect  the  construction  of  a 
contract,  unless  notice  of  it  can  be  brought  home  to  the  party  against  whom 
it  is  invoked:  Martin  v.  Maynard,  16  N.  H.  165.  Evidence  of  custom  cannot 
control  an  express  contract,  unless  the  attendant  circumstances  imply  that  tlie 
parties  contracted  with  reference  to  it :  Rafert  v.  Scroggins,  40  Ind.  1 95. 
Usage  is  not  allowed  to  engraft  on  a  contract  any  obligation  inconsistent  with 
the  law:  Haskins  v.  Warren,  115  Mass.  514;  and  see  BindskoffiJ.  Barrett,  14 
Iowa,  1 01 ;  Boody  v.  Rutland  R.  R.  Co.,  3  Blatch.  25 ;  Mealier  v.  Luf kin,  21 
Tex.  383;  Wallace  v.  Morgan,  23  Ind.  390;  Fay  v.  Strawn,  32  111.  295;  Bliss 
V.  Ropes,  9  Allen,  339;  Sturges  v.  Buckley,  32  Conn.  18,  265;  Fox  v.  Parker, 
44  Barb.  541 ;  Lombardo  v.  Case,  45  lb.  95 ;  Overman  v.  Iloboken  City  Bank, 
30  N.  J.  61 ;  Exchange  Bank  t'.  Cookman,  1  West  Va.  69  ;  Detwilcr  v.  Green, 
lb.  109 ;  Lowe  v.  Lehman,  15  Ohio  St.  179 ;  Niagara  Co.  Bank  v.  Baker, 
lb.  68  ;  Thompson  v.  Riggs,  5  Wall.  (S.  C.)  663  ;  Dodd  v.  Farlow,  11  Allen, 
426  ;  Saint  v.  Smith,  1  Cold.  51 ;  Barnes  v.  Ingall^,  39  Ala.  193. — s. 

69 


66  OF   WRITTEN    CONTKACTS.  [lECT.  II. 

but,  continuing  to  occupy  without  further  stipulation, 
was,  according  to  law,  bound  by  the  terms  of  the  ex- 
pired lease.  There  was  a  covenant  in  the  lease,  that  he 
r:>.rrj-]  would  consume  on  the  farm  "^'three-quarters  of  the 
hay  and  straw  raised  thereon,  and  on  certain 
other  property  not  comprised  in  the  lease,  and  would 
leave  for  the  landlord  such  of  the  manure  thence  aris- 
ing as  was  not  used  upon  the  farm,  receiving  a  reason- 
able price  for  it.  There  was  also  a  custom  of  the 
neiiihborhood  that  the  tenant  of  a  farm  should  receive 
from  the  landlord  or  incoming  tenant  a  reasonable  al- 
lowance for  seed  and  labor  bestowed  on  the  arable  land 
in  the  last  year  of  his  tenancy,  and  should  leave  the 
manure  for  the  landlord  if  he  would  purchase  it.  The 
Court  considered  that  in  this  case  the  only  difference 
material  to  the  question  between  the  covenant  and  the 
custom  was  that  the  covenant  obliged  the  tenant  to  spend 
on  the  farm  more  than  its  own  produce  upon  being  paid 
for  it,  which  was  not  incompatible  with  the  custom,  but 
virtually  left  it  in  its  full  operation. 

But  the  Courts  never  admit  evidence  of  an  usaf/e  in- 
compatible with  the  written  conlract ;  for,  in  the  words 
of  Mr.  Baron  Alderson,  in  the  case  of  Clarke  v.  Key- 
stone (<?),  "  Where  a  stipulation  is  inconsistent  with  the 
custom  of  the  country,  the  contract  must  prevail  and 
the  custom  of  the  country  must  be  excluded."  Tn  these 
cases  it  appears  to  be  simply  a  question  whether  the 
words  of  the  contract  themselves  sufficiently  disclose  the 
full  import  of  the  contract;  if  so,  no  *custom  cau 
*-      -'    vary  it,  and  no  evidence  of  custom  is  admissible. 

But  a  tenant  may  avail  himself  of  a  local  custom  to 
take  an  away-going  crop  after  the  expiration  of  his 
term  under  a  lease,  although  the  terms  of  holding  during 
the  continuance  of  it  are  inconsistent  with  the  custom, 

(cj  13  M.  &  W.  752. 

70 


LECT.  II.]  OF   WRITTEN   CONTRACTS.  58 

if  it  contain  no  stipulations  as  to  the  mode  of  quilting 
(d).  For  it  is  evident  that  the  rights  of  the  hmdlord 
and  tenant  may  be  governed  by  the  terms  of  the  agree- 
ment during  the  tenancy,  and  by  the  terms  of  the  cus- 
tom immediately  afterwards.^ 

(d)  Holding  v.  Piggott,  7  Bing.  (20  E.  C.  L.  R.)  465. 

^  Thus  in  Coit  v.  Ins.  Co.,  7  Johns.  385,  evidence  was  admitted  to  show  that, 
by  general  understanding,  the  word  "roots"  in  New  York  policies  of  insur- 
ance, was  limited  to  roots  perishable  in  their  own  nature,  and  therefore  ex- 
cluded sarsaparilla ;  and  in  Astor  v.  Ins.  Co.,  7  Cow.  202,  the  usage  of  furs  and 
skins  was  admitted  to  show  the  meaning  of  those  words  in  a  policy  ;  and  other 
instances  in  whicli  usage  was  similarly  permitted,  by  way  of  explanation,  will 
be  found  in  Taylor  v.  Briggs,  2  C.  &  P.  (12  E.  C.  L.  R.)  525  ;  Smith  v.  Wilson, 
3  B.  &  A.  (23  E.  C.  L.  R.)  728 ;  Baker  v.  Ludlow,  2  Johns.  Cas.  289 ;  Macy  v. 
Ins.  Co.,  9  Mete.  362 ;  Putnam  v.  Tillotson,  13  lb.  517  ;  Eyre  v.  Ins.  Co.,  5  W. 

6  S.  116  ;  Allegre  v.  Ins.  Co.,  6  Harr.  <&  J.  408 ;  AUegre's  Adm'rs  v.  Muryland 
Ins.  Co.,  2  Gill  &  J.  136.  So,  in  a  late  case,  where  a  vessel  was  libelled  for 
freight  of  flour,  the  respondents  proved  that  it  had  been  damaged  by  being 
stowed  in  the  hold  on  the  top  of  moist  sugar,  and  the  libellants  were  per- 
mitted to  show  an  established  custom  of  storage  in  general  ships  from  New 
Orleans  to  the  northern  ports — "  it  being,  of  course,  well  understood  by  the 
respondents  that  their  flour  would  be  thus  shipped,  unless  they  gave  instruc- 
tions to  the  contrary,  they  must  be  deemed  to  have  assented  to  the  mode  of 
shipment:"  Baxter  v.  Leland,  1  Blatcli.  526.  Evidence  of  a  usage  is  not, 
however,  admissible  when  the  meaning  is  certain  and  not  doubtful:  Gross  v. 
Cris.s,  3  Gratt.  262 ;  JIacomber  v.  Parker,  13  Pick.  176 ;  Brown  v.  Brown,  8 
Mete.  577 ;  Sleght  v  .Rhineiander,  1  Johns.  192,  reversed  on  another  point 
in  2  lb.  531  ;  nor  where  it  will  contradict  the  written  contract,  as  where  a 
policy  was  made  in  the  usual  form  upon  the  ship,  her  tackle,  apparel,  boats, 
etc..  evidence  of  usage  that  the  underwriters  never  pay  for  the  loss  of  boats 
slung  on  tlie  quarter  was  held  as  inadmissible :  Blackett  v.  Ass.  Co.,  2  C.  &  J. 
244  ;  and  to  the  same  effect  are  Sch.  Reeside,  2  Sum.  568  ;  Turney  v.  Wilson, 

7  Yerg.  340;  Allen  v.  Dykers,  3  Hill,  593;  Hinton  v.  Locke,  5  lb. 
437.  And  it  has  also  been  said  that  a  usage  will  not  be  recognized  in  a  court 
of  law  unless  it  be  reasonable,  and  adapted  to  increase  trade  and  promote  fair 
dealing  between  the  parties :  Maxcy  v.  Ins.  Co.,  9  Mete.  363 ;  Bowen  v.  Stod- 
dard, 10  lb.  381.  The  student  will  find  the  cases  upon  this  subject  collected, 
and  the  di.stinctions  carefully  noticed,  in  the  American  note  to  AVigiilesworth 
t'.  Dailison,  1  Smith's  L.  C.  928.  The  later  cases  show  a  disposition  rather  to 
restrain  than  to  enlarge  the  introduction  of  such  evidence :  Donnell  v.  Colum- 
bia Ins.  Co.,  2  Sum.  377  ;  and  under  any  circumstances  it  is  said  that  a  usage 
must  not  be  proved  by  isolated  instances,  but  be  so  certain,  imiform,  and  no- 
torious, that  it  must  probably  have  been  understood  b/  the  parties  as  entering 
into  the  contract :  Cope  v.  Dodd,  13  Pa.  St.  33 ;  Nichols  v.  De  Wolf,  1  R. 
I.  277.— E. 

71 


58  OF   WRITTEN   CONTRACTS.  [lECT.  II. 

The  following  example  relative  to  annexing  a  custom 
to  the  stipulations  in  a  lease  is  also  well  worth  observ- 

When  the  terms  of  a  contract  are  clear,  evidence  of  usage  is  inadmissible  to 
vary  its  effect :  George  v.  Bartlett,  22  N.  H.  496  ;  Catlin  v.  Smith,  24  Vt.  85  ; 
Wadswortli  v.  Alcott,  6  N.  Y.  64.  In  the  absence  of  clear  stipulations  in  con- 
tracts, usage  of  trade  or  business  is  admissible  to  show  the  intention  of  the 
parties:  Leach  v.  Beardslee,  22  Conn.  404  ;  Dixon  v.  Dunham,  14  111.  324.  If 
it  be  sliown  or  may  be  fairly  presumed  that  the  parties  to  a  contract  entered 
into  it  in  reference  to  a  custom  existing  in  the  city  where  they  did  business, 
and  where  they  contracted,  the  general  law  must  give  way  to  the  custom : 
Fulton  Ins.  Co.  v.  Milner,  23  Ala.  420  ;  Soutier  v.  Kellerman,  18  Mo.  509. 
The  custom  must  be  of  such  extent,  universality,  and  antiquity  as  to  warrant 
the  conclusion  that  it  was  known  to  the  contracting  parties,  and  that  they 
made  their  contract  with  reference  to  it :  Dixon  v,  Dunham,  14  111.  324 ; 
Adams  v.  Otterback,  15  How.  539.  It  must  be  uniform,  known,  and 
established,  and  whether  it  is  so  is  a  question  of  fact  for  the  jury:  Farnsworth 
V.  Cliase,  19  N.  H.  534.  To  vary  the  ordinary  meaning  of  plain  words  in  a 
contract,  the  evidence  must  sliow  a  special  custom,  precise,  definite,  and  uni- 
versal where  it  exists :  Steward  v.  Scudder,  24  N.  J.  96.  Proof  of  a  local  usage 
can  never  be  received  to  vary  the  construction  that  the  law  would  otherwise 
give  to  a  contract,  imless  it  is  clearly  proved  that  its  existence  was  known  to 
the  parties,  and  that  their  contract  was  made  with  reference  to  it:  Wheeler  v. 
Newbould,  5  Duer,  29  ;  Martin  v.  Maynard,  16  N.  H.  165 ;  Steele  v.  McTyer, 
31  Ala.  667.  No  custom,  however  general,  can  be  given  in  evidence  to  vary 
or  control  the  express  terms  of  a  contract :  Caldwell  v.  Meek,  17  IlL  220 ; 
Wheeler  v.  Nurse,  20  N.  II.  220.  It  cannot  be  laid  down  as  a  positive  rule 
that  more  than  one  witness  is  required  to  prove  a  usage  :  Partridge  v.  Forsyth, 
29  Ala.  200  ;  contra,  Bissell  v.  Ryan,  23  111.  566.  An  isolated  instance  is  not 
sufficient,  nor  the  custom  of  one  person :  Burr  v.  Sickles,  17  Ark.  428.  A 
usage  must  be  notorious,  certain,  uniform,  reasonable,  and  legal :  Townsend  v. 
Whitby,  5  Ilarring.  55.  And  see  Oelricks  v.  Ford,  23  How.  49;  Dalton 
V.  Daniels,  2  Hilt.  472 ;  Given  v.  Charron,  15  Md.  502 ;  Berry  v.  Cooper,  28 
Ga.  543 ;  Shackelford  v.  New  Orleans  R.  R.  Co.,  37  Miss.  202.  It  can  be 
proved  only  by  witnesses  who  have  had  actual  experience  of  it,  not  by  their 
own  opinions :  lb.  A  general  custom  or  a  special  custom  aflecting  the  par- 
ticular locality  or  trade,  if  proved,  will  be  the  law  of  the  contract :  Ilursh  v. 
North,  40  Pa.  St.  241.  A  custom  of  the  country  which  sanctions  any  con- 
trivance by  Avhich  creditors  can  get  more  than  legal  interest  is  bad  :  Greene 
V.  Tyler,  39  lb.  361.  When  a  custom  is  so  universal  and  of  such  long  stand- 
ing tliat  all  men  are  presumed  to  know  it,  the  Court  will  take  judicial  notice 
of  it.  Such  is  the  custom  of  banks  to  allow  their  customers  to  withdraw  their 
deposits  in  parcels :  Munn  v.  Burch,  2o  111.  35. 

There  is  a  strong  and  increasing  disinclination  of  the  courts  to  allow  the 
general  laws  of  the  country  to  be  varied  by  proof  of  local  usages.  Such  a 
usage  is  binding  only  on  the  ground  that  the  party  sought  to  be  charged  con- 
tracted with  reference  to  it.  The  evidence  must  be  such  as  to  clearly  author- 
ize the  presumption  that  he  had  a  knowledge  of  it.     It  must  be  of  such  age, 

72 


LECT.  II.]      OF  WKITTEX  COXTEACTS.  58 

ing.  A  lease  for  seven  years  contained  a  clause  "  that 
the  tenant  should,  during  the  term,  consume  with  stock 
on  the  fai;m  all  the  hay,  straw,  and  clover  grown 
thereon,  which  manure  should  be  used  on  the  farm ;  and 
should,  in  the  last  year  of  the  .term,  leave  not  less  than 
fourteen  acres  of  land,  summer  fallowed,  manured  with 
a  full  quantity  of  manure,  and  sown  in  good  time  for 
sheep  feed."  But  there  was  a  custom  in  the  parish  that 
an  outgoing  tenant  who,  on  coming  in,  had  paid  for  the 
straw,  was  entitled  to  be  paid  for  it  on  going  out,  which 
payment  on  coming  in  had  in  fact  been  made  by  the 
plaintiff.  It  was  held  that  the  provision  in  the  lease  did 
not  prescribe  anything  to  be  done  with  *the  straw 
on  quitting,  and  that  the  custom  bound  the  out-  ^  -^ 
going  tenant  to  leave  the  straw,  and  entitled  him  to  be 
paid  for  it  (e).  But  in  a  case  where,  by  the  custom 
of  the  country,  the  outgoing  tenant  was  entitled  to  an 
allowance  for  foldage  from  the  incoming  tenant,  but  the 
lease  under  which  the  former  had  held  specified  certain 
payments  to  be  made  by  the  incoming  to  tlie  outgoing 
tenant  at  the  time  of  quitting  the  premises,  among 
which  there  was  not  included  any  payment  for  foldage ; 
the  Court  considered  that  the  terms  of  the  lease  ex- 
cluded the  custom,  and  that  the  outgoing  tenant  was  not 
entitled  to  any  allowance  in  respect  of  foldage  (/). 

(e)  Muncey  v.  Dennis,  26  L.  J.  (Ex.)  66;  1  H.  &  N.  216. 

(/)  Webb  V.  Plummer,  2  B.  &  Aid.  746 ;  see  Roberts  v.  Barker,  1  C.  &  M. 
808.  In  Tucker  v.  Linger,  21  Ch.  Div.  18;  51  L.  J.  (Ch.)  713,  a  custom  for 
the  tenant  to  take  away  and  sell  flints,  which  came  to  the  surfoce  by  ploughing, 
was  held  not  inconsistent  with  a  reservation  to  the  lessor  of  "  all  mines  and 
minerals,  sand,  quarries  of  stone,  brickearth,  and  gravel  pits." 

such  uniformity  of  observance,  such  certainty  and  fixedness  of  character,  and 
of  such  notoriety,  that  a  jury  would  feel  clear  in  saying  that  it  was  known  to 
the  party  sought  to  be  aflected  by  it:  Caldwell  v.  Dawson,  4  Mete.  (Ky.)  121. 
Proof  of  usage  can  only  be  received  to  show  the  intention  or  understanding  of 
the  parties  in  the  absence  of  a  special  agreement :  Fay  v.  Strawn,  32  111.  295 ; 
Meaher  v.  Luf  kin,  21  Tex.  383.— s. 

73 


59  OF   WRITTEN   CONTKACTS.  [lECT.  II. 

Parol  evidence  is  admissible  to  annex  customary 
incidents  to  written  contracts,  not  only  between  land- 
lord and  tenant,  but  in  commercial  and  other  trans- 
actions of  life  in  which  known  usages  have  been  es- 
tablished. 

Thus,  a  person  employing  a  broker  on  the  Stock 
Exchange  impliedly  gives  him  power  to  act  in  accord- 
ance with  the  rules  there  established,  although  he  makes 
r:i:pA-|  no  mention  of  them  in  his  instructions,  *and 
although  he  may  even  be  ignorant  of  them  (g). 
But  of  course  the  rules  by  Avhich  he  so  gives  the  broker 
authority  to  act,  must  be  rules  existing  when  the  con- 
tract is  made,  not  such  as  are  made  after  it  is  com- 
pleted (A).  Thus  also  an  agreement  in  writing  to  serve 
from  11th  November,  1815,  to  11th  November,  1817, 
at  certain  wages,  expressed  as  follows,  "  We  "  (i.  e.,  the 
servants)  "  engage  to  lose  no  time  on  our  account,  to  do 
our  work  well  and  behave  ourselves  in  every  respect  as 
good  servants,"  was  considered  consistent  with  a  usage 
in  the  particular  trade  for  servants,  under  similar 
contracts,  to  have  certain  holidays  and  Sundays  to  them- 
selves (^). 

In  another  instance  there  was  an  agreement  in  writ- 
ing between  a  master  and  a  servant  in  the  woollen  and 
mohair  cloth  manufacture,  that  the  plaintiff  should  serve 
the  defendant  therein  at  £150  a  year,  provided  that  if, 
at  the  end  of  the  year,  the  defendant  had  found  that 

(g)  Sutton  V.  Tatham,  10  A.  &  E.  (37  E.  C.  L.  E.)  27.  See  Eayliffe  v.  But- 
terworth,  1  Exch.  425 ;  Stewart  v.  Cauty,  8  M.  &  W.  160 ;  Bay  ley  v.  Wilkins, 
7  C.  B.  (62  E.  C.  L.  K.)  886;  Taylor  v.  Stray,  26  L.  J.  (C.  P.)  185,  287;  2  C. 
B.  N.  S.  (89  E.  C.  L.  R.)  175;  Smith  v.  Lindo,  27  L.  J.  (C.  P.)  335;  Grissell 
V.  Bristowe,  L.  R.  4  C.  P.  (Ex.  Ch.)  36,  reversing  lb.  3  C.  P.  112;  s.  c.  37  L. 
J.  (C.  P.)  89;  38  lb.  10  (Ex.  Ch.).  But  the  custom  of  the  Stock  Exchange  is 
not  binding  unless  reasonable  and  legal.  Neilson  v.  James,  9  Q.  B.  D.  546;  51 
L.  J.  (Q.  B.)  369. 

(h)  Westropp  V.  Solomon,  8  C.  B.  (65  E.  C.  L.  R.)  345. 

(i)  R.  V.  Stoke-upon-Trent,  5  Q.  B.  (48  E.  C.  L.  R.)  303. 

74 


lECT.  II.]  OF   WKITTEN   CO^S^TKACTS.  60 

the  plaintiff  had  done  sufficient  business  to  justify  him 
in  making  up  his  ^salary  to  £180,  he  would  r^Qy\ 
make  him  a  donation  of  £30.  A  general  cus- 
tom in  the  trade  was  proved  that  either  party  might 
determine  the  service  upon  giving  the  other  a  month's 
notice ;  and  the  question  was,  whether  the  terms  of  the 
aarreement  were  such  as  to  exclude  the  custom.  The 
Court  clearly  thought  that  there  was  not  anything  ia  it 
to  have  that  effect.  Crowder,  J.,  observed  that  the 
agreement  did  not  contain  any  stipulation  as  to  the  time 
of  quitting  the  service,  or  as  to  the  term  of  dismissal. 
If  it  had  contained  such  stipulations,  then,  according  to 
the  authorities,  the  custom  would  have  been  excluded, 
for  the  question  in  all  these  cases  is,  whether  the 
incident  which  it  is  sought  to  import  into  the  con- 
tract is  consistent  with  the  terms  of  the  written  instru- 
ment {k). 

For  the  same  reason,  in  a  case  where  it  was  proved 
that  in  the  tobacco  trade  whenever  a  sale  of  tobacco 
takes  place,  and  the  written  contract  of  sale  contains  no 
stipulation  on  the  subject  of  samples,  but  samples  are 
actually  delivered,  a  usage  prevails  to  consider  the  ven- 
dor as  agreeing  that  the  bulk  shall  correspond  with  the 
sample ;  and  the  question  in  the  case  was,  whether  the 
usage  was  excluded  by  implication ;  the  Court  of  Ex- 
chequer decided  that  the  usage  might  be  proved,  annex- 
ing thereby  an  additional  term  to  the  w^ritten  contract 
not  inconsistent  with  it  (/).  One  more  instance  of  a 
*mercantile  contract  to  which,  although  in  writ-  r-A-coi 
ing,  a  customary  usage  has  been  annexed,  will 
suffice.  A  bill  of  lading  provided  that  goods  should  be 
delivered  to  the  consignee  or  his  assigns  at  Liverpool, 
he  or  they  paying  freight  for  the  same,  I  of  a  penny  per 

(A)  Parker  v.  Ibbetson,  27  L.  J.  (C.  P.)  236. 
{1}  Syers  v.  Jonas,  2  Ex.  111. 

75 


62  OF    WRITTEN    CONTRACTS.  [lECT.  II. 

lb.,  with  primage  and  average  accustomed.     The  ship- 
owner sued  the  indorsee  of  tlie  bill  of  lading,  wiio  had 
accepted  the  goods,  to  recover  the  freight  and  primage, 
when  the  latter  was  allovvetl  to  i)rove  a  custom  at  Liver- 
pool by  which  he  was  entitled  to  a  deduction  of  tliree 
months'  discount  from  the  freight.     "  In  all  contracts  '* 
(said    Coleridge,   J.,    delivering   the   judgment   of  the 
Court),  "  as  to  the  subject-matter  of  which  known  usages 
prevail,  parties  are  found  to  proceed  upon  tlie  tacit  as- 
sumption of  these  usages ;  they  commonly  reduce  into 
writing   the  special  particulars  of  their  agreement,  but 
omit  to  specify  these  known  usages,  which  are  included, 
liowever,  as  of  course,  by  mutual  understanding :  evi- 
dence, therefore,  of  such  incidents  is  receivable.     The 
contract  in  truth  is  partly  expi-ess  and  in  writing,  partly 
implied  or   understood  and    unwritten.     But,  in    these 
cases,  a  restriction  is  established  on  the  soundest  prin- 
ciple,   that   the   evidence   received    must  not    be   of  a 
particular  which  is  repugnant  to,  or  inconsistent  w^ith, 
the  written  contract.     Merely  that  it  varies  the  apparent 
contract  is  not  enough  to  exclude  the  evidence ;  for  it  is 
impossible  to  add  any  materiid  incident  to  the  wi'itten 
pi:pQ1    '^terms  of  a  contract  without  altering  its  effect, 
more  or  less"  {m). 
The  following  are  incidents  in  which  the  usage  has 
been  held  inconsistent  with  the  contract: — Where  one 
carried  on  business  as  a  tallow  merchant,  through  an 
agent  who  always  used  his  own  name,  but  was  univer- 
sally knov/n  to  represent  the  merchant,  evidence  of  a 
custom  in  the  tallow  trade  to  reject  on  such  contracts 
the  principal,  and  to  look  to  the  broker  alone  for  the 
fulfilment  of  the  contract,  was  held  inadmissible  as  be- 
ing inconsistent  with  it  {71).     And  again,   where  in  a 

(m)  Brown  v.  Byrne,  23  L.  J.  (Q  B.)  313;  3  E.  &  B.  (77  E.  C.  L.  E.)  703. 
(ra)  Tnieman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  589;  Magee  v.  Atkinson, 
7G 


LECT.  II.]  OF   WRITTEN   CONTRACTS.  63 

policy  of  assurance  it  was  expressed  that  the  insurance 
on  the  «hip  should  continue  until  she  was  moored 
twenty-four  hours,  and  on  the  goods  till  safely  landed, 
it  was  held  that  a  usage  that  the  risk  on  the  goods  as 
well  as  on  tlie  ship  expired  in  twenty-four  hours  was 
inadmissible  (o). 

Upon  the  same  ground,  where  an  attorney  entered 
into  a  written  contract  whereby  he  agreed  to  take  into 
partnership  in  the  business  of  an  attorney  a  person  who 
had  not  at  that  time  been  admitted,  no  time  being  fixed 
by  the  writing  for  the  commencement  of  the  partner- 
ship, it  was  decided  that  (no  *time  being  ex-  v-^nA-i 
j)ressly  appointed)  the  partnership  commenced  ^  -" 
from  the  date  of  the  agreement ;  and  that  parol  evidence 
could  not  be  received  to  show  that  the  agreement  was 
not  to  take  effect  until  the  intended  partner  should  be 
duly  admitted,  for  such  evidence  would  make  the  agree- 
ment different  from  that  which  it  purported  to  be, 
namely,  an  agreement  for  a  present  partnership  {p). 

Moreover,  where  terms  are  used  which  are  known 
and  understood  by  a  particular  class  of  persons  in  a  cer- 
tain special  and  peculiar  sense,  evidence  to  that  effect  is 
admissible  for  the  purpose  of  applying  the  instrument 
to  its  proper  subject-matter;  and  the  case  seems  to  fall 
within  the  same  consideration  as  if  the  parties,  in  fram- 
ing their  contracts,  had  made  use  of  a  foreign  language, 
which  the  Courts  are  not  bound  to  understand.  Thus, 
where  by  a  charter-party,  a  vessel  with  a  cargo  of 
coals  to  Algiers  was  to  be  unloaded  at  a  certain  rate  per 
day,  and  if  detained  longer  the  charterer  was  to  pay  so 
much  per  day  from  the  time  of  the  vessel  being  ready  to 

2  M.  &  W.  440;  Jone3  v.  Littledale,  6  A.  &  E.  (33  E.  C.  L.  R.)  486.  See  also 
Robinson  v.  Mollett,  L.  R.  7  H.  L.802;  44  L.  J.  (C.  P.)  362,  reversing  Mollett 
*.  Robinson,  L.  R.  o  C.  P.  646,  7  lb.  84;  39  L.  J.  (C.  P.)  290,  41  lb,  65. 

(o)  Parkinson  v.  Collier,  Park  on  Ins.  47. 

ip)  Williams  r.  Jones,  5  B.  &  C.  (11  E.  C.  L.  R.)  108. 

77 


64  OF   WRITTEN   CONTEACTS.  [lECT.  TI. 

unload  and  in  turn  to  deliver,  evidence  was  admitted 
to  show,  that,  in  the  port  of  Algiers,  these  words  had 
acquired  a  peculiar  meaning  (q).  And  where  one  of  the 
terms  of  a  charter-party  was  that  the  vessel  should  pro- 
ceed to  Newcastle  and  there  be  ready  "  in  regular  turns 
of  loading,"  it  was  decided  that  *the  question  what 
^  -^  was  loading  in  a  reasonable  time  ought  not  to  be 
decided  without  reference  to  the  visage  of  the  port  in 
respect  of  loading,  a  custom  in  this  respect  having  been 
proved  to  exist  (r).  Upon  this  principle  evidence  has 
been  admitted  to  show  that  in  mercantile  contracts  the 
Gulf  of  Finland  is  considered  as  within  the  Baltic,  al- 
though the  two  seas  are  considered  separate  and  distinct 
by  geographers  {s).  So  evidence  is  admissible  to  prove 
that,  in  similar  contracts,  the  Mauritius  is  treated  as  an 
Indian  island,  although  treated  by  geographers  as  Af- 
rican (t).  Parol  evidence  has  been  received  to  show  the 
meaning  of  the  word  "level"  in  a  lease  of  coal  mines 
(u)  ;  that  the  word  London  has  a  colloquial  sense  other 
than  the  City  (x)  ;  and  that,  by  the  usage  of  a  particu- 
lar district,  1000,  applied  in  a  lease  to  rabbits  on  the 
land,  meant  1200  (y).  In  like  manner,  where  an 
auctioneer  was  employed  to  sell  land  under  a  written 
contract,  that  he  should  be  paid  1  per  cent,  commission, 
but  if  the  estate  were  not  sold  within  two  months  after 
the  day  of  auction,  then  he  should  be  paid  J  per  cent. 
_  only ;  it  was  *held  that,  although  this  time  by 

L      -^    itself  meant  two  months  of  four  weeks  each,  yet 
evidence  of  those  words  being  used  in  the  auction  trade 

(q)  Eobertson  v.  Jackson,  2  C  B.  (52  E.  C.  L.  E.)  412. 
(r)  Leidraan  v.  Schultz,  23  L.  J.  (C.  P.)  17;  14  C.  B.  (78  E.  C.  L.  R.)  38; 
see  Hudson  v.  Clementson,  25  L.  J.  (C.  P.)  234;  18  C.  B.  (86  E.  C.  L.  R.)  213. 
(s)  Udhe  V.  Walters,  3  Camp.  16. 
(i)  Ro})ertson  v.  Money,  Ry.  &  Mood.  75. 
(u)  Clayton  v.  Gregson,  5  A.  &  E.  (31  E.  C.  L.  R.)  302. 
(x)  Mailan  v.  May,  13  M.  &  W.  511. 
(y)  Smith  v.  Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728. 
78 


LECT.  II.]  OF   WRITTEN"   CONTKACTS.  66 

in  the  sense  of  calendar  months  was  admissible,  from 
which  the  jury  might  find  that  they  were  so  used  in  this 
contract  (z).  Where  a  contract  was  made  to  sell  mess 
pork  of  Scott  &  Co.,  evidence  was  admitted  to  show  that 
in  the  market  it  was  understood  to  mean  manufactured 
by  Scott  &  Co.  (a) ;  and  where  a  corn-merchant  abroad 
sent  instructions  to  his  corn  factor  in  London  to  sell  oats 
on  his  account,  evidence  was  admitted  to  show  that,  by 
the  custom  of  the  London  corn  trade,  a  factor  acting 
under  such  instructions  was  warranted  in  selling  in  his 
own  name  (b).  In  another  instance,  a  memorandum  for 
a  wager  on  a  steeple-chase  described  the  race  as  four 
miles  across  a  country,  and  evidence  was  received  to  ex- 
plain that  across  a  country  meant  that  the  riders  were  to 
go  over  all  obstructions,  and  not  to  avail  themselves  of 
an  *open  gate  (c).  In  another  case,  an  agreement  r-^r^^-, 
in  writing  was  made  by  an  actress  to  perform  at  ^  -' 
defendant's  theatre,  who  agreed  to  engage  her  for  three 
years,  and  to  pay  her  so  much  a  week.  In  an  action  for 
the  salary,  the  defendant  was  allowed  to  prove  that,  ac- 
cording to  uniform  usage  in  the  theatrical  profession, 
the  actress  was  to  be  paid  during  the  theatrical  season 
only — that  is,  while  the  theatre  was  open  (d).  Upon 
the  same  principle,  where  the  defendant  contracted  by  a 
charter-party  to  load  at  Trinidad  a  full  and  complete 

(z)  Simpson  v.  Margitson,  11  Q.  B.  (63  E.  C.  L.  R.)  23. 

(a)  Powell  V.  Horton,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  668.  See  also  Johnson 
V.  Eaylton,  7  Q.  B.  D.  438 ;  50  L.  J.  (Q.  B.)  753.  Here  evidence,  that  in  the  iron 
trade  there  is  a  custom  that  under  a  contract  between  a  manufacturer  of  iron 
plates  and  a  customer  for  the  supply  of  them,  the  seller  must,  in  the  absence 
of  stipulation  to  the  contrary,  supply  plates  of  his  own  make,  and  that  the 
purchaser  is  entitled  to  reject  other  plates  if  tendered,  though  of  the  quality 
contracted  for,  was  held  admissible. 

(6)  Johnson  v.  Usborne,  11  A.  &  E.  (39  E.  C.  L.  K.)  549;  Graves  v.  Legg,  2fi 
L.  J.  (Ex.)  316;  11  Ex.642. 

(c)  Evans  v.  Pratt,  3  M.  &  G.  (42  E.  C.  L.  R.)  759. 

(d)  Grant  v.  Maddox,  15  M.  &  W.  737 ;  see  also  Myers  v.  Sari,  3  E.  &  E. 
306;  30L.  J.  (Q.  B.)  9. 

79 


67  OF   WRITTEN   CONTRACTS.  [lE(T.  H. 

cargo  of  sugar,  molasses,  or  other  lawful  produce,  and 
he  did  load  as  many  puncheons  of  sugar  and  molasses  as 
the  ship  would  bold,  he  was  held  to  have  fulfilled  his 
contract,  because,  by  the  custom  of  Trinidad,  a  full  and 
complete  cargo  of  sugar  and  molasses  meant  a  cargo  of 
those  goods  packed  in  puncheons  (e).  So  it  has  been 
decided  that  a  Ui^age  and  custom  that  underwriters  are 
not,  under  the  ordinary  form  of  policy,  liable  to  general 
average  for-  the  jettison  of  timber  stowed  on  deck,  is  not 
inconsistent  with  the  terms  of  such  policy,  although 
those  terms  have  been  always  held  to  render  the  insurer 
ordinarily  liable  for  general  average.  Such  custom  is  a 
_.  reasonable  *one,  for  the  goods  so  stowed  are  not  in 
■-  -•  the  part  of  the  ship  where  goods  are  usually  car- 
ried, and  are  in  more  than  usual  peril  (/).  Again,  where 
mining  shares  were  sold,  the  written  contract  for  the 
sale  of  which  specified  the  times  of  payment,  but  not 
the  time  of  delivery,  proof  of  a  usage  among  brokers  in 
mining  shares,  that  on  contracts  for  the  sale  and  pur- 
chase of  such  shares,  the  delivery  of  them  should  take 
place  concurrently  with,  and  at  the  time  agreed  upon 
for  payment,  and  that  the  purchaser  was  not  at  liberty 
to  demand  the  delivery  of  them  before  the  time  of  pay- 
ment, was  admitted  (^). 

But,  as  said  by  Lord  Lyndhurst,  C.  B ,  in  Blacket  v. 
Koyal  Exchange  Insurance  Company,  although  "usage 
may  be  admissible  to  explain  what  is  doubtful,  it  is 
never  admitted  to  contradict  what  is  j^lain."  In  this 
case,  a  policy  of  insurance,  in  the  common  form  upon 
the  ship — that  is,  "  the  body,  tackle,  apparel,  ordnance, 
munition,  boat,  and  other  furniture  of  the  ship,"  was 

(e)  Cuthbert  v.  Cummings,  (Ex.  Ch.)  24  L.  J.  (Ex.)  310;  11  Ex.  405. 

(/)  Miller  v.  Titherington,  30  L.  J.  (Ex.)  217  ;  6  11.  &  N.  278;  affirmed  in 
Ex.  Ch.  31  L.  J.  (Ex.)  363;  7  H.  &  N.  954. 

(.7)  Field  V.  Lelean,  30  L.  J.  (Ex.)  168, jin  Ex.  Ch.;  see  Spartall  v.  Benecke, 
10  C.  B.  (70  E.  C.  L.  E.)  212. 
80 


LECT.  II.]  OF   WRITTEN   CONTRACTS.  68 

sought  to  be  qualified  to  the  exclusion  of  boats  slung  on 
the  ship's  quarter,  by  proving  a  usage  at  Lloyd's  to  that 
effect.  It  is  obvious  that  this  usage  ought  to  be  rejected, 
as  it  was  not  to  explain  the  policy,  *or  to  intro-  n\:nq-i 
duce  matter  upon  which  it  was  silent,  but  was  in 
direct  variance  with  the  words  of  the  policy,  and  in 
plain  opposition  to  the  language  it  used  (A).  A  con- 
tract was  made  with  a  shipowner,  by  a  broker,  to  have 
a  full  cargo  for  the  ship,  the  rates  of  freight  for  which 
would  average  40s.  a  ton,  and  at  least  nine  cabin  pas- 
sengers, passage  money  to  average  £75.  The  contract 
was  fulfilled  as  to  the  cabin  passengers,  but  the  average 
rate  of  freight  for  the  goods  put  on  board  was  only  32s. 
a  ton ;  but  several  steerage  passengers  w^ere  shipped 
whose  passage  money  made  up  the  average  earnings  of 
the  ship  to  40s.  a  ton.  Evidence  that  the  words  cargo 
and  freight  in  the  voyage  the  ship  was  engaged  in  would 
include  steerage  passengers,  and  the  net  profit  arising 
from  their  passage  money,  was  rejected  (^).  The  object 
of  extrinsic  evidence  in  these  cases  is  to  explain  terms 
and  modes  of  expression  which,  although  belonging  to 
the  English  language,  are  not  intelligible  to  all  who 
understand  it,  but  have  acquired,  by  usage,  a  definite 
sense  and  meaning  known  amongst  a  particular  class  of 
persons,  which  can  be  well  ascertained  by  means  of  the 
testimony  of  those  who  are  conversant  with  the  peculiar 
use  of  those  terms.  The  witnesses  for  this  purpose  may 
be  ^considered  as  the  sworn  interpreters  of  the  ri^-jryi 
language  of  commerce,  art,  or  the  place  in  which 
the  contract  is  written.  But  beyond  this  the  prinaple 
does  not  extend.  If  plain  and  ordinary  terms  and 
expressions,  to  which  an  unequivocal  meaning  belongs, 

(A)  2  C.  &  J.  244.  See  also  Myers  v.  Sari,  3  E.  &  E.  306  ;  30  L.  J.  (Q.  B.) 
9;  Miller  v.  Titherington,  oO  L.  J.  (Ex.)  217;  Hayton  v.  Irwin,  5  C.  P.  D. 
130. 

(i)  Lewis  V.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  E.)  729. 

6  81 


70  OF   WRITTEN   CONTRACTS.  [lECT.  H. 

"wliicli  is  intelligible  to  all,  are  used,  that  plain  sense  and 
meaning  ought  not  to  be  altered  by  mercantile  under- 
standing; and  usao-e.  To  allow  such  alteration  would  be 
to  make  it  legal  to  say  one  thing  and  mean  another,  and 
would  render  a  writing  useless.  Therefore,  parol  evi- 
dence cannot  be  given  to  explain  the  meaning  of  the 
words  "  more  or  less  "  in  a  mercantile  contract  {k)}  And 

{k)  Cross  V.  Eglin,  2  B.  &  Ad.  (22  E.  C.  L.  E.)  106  ;  see  Moore  v.  Campbell, 
10  Ex.  323;  23  L.  J.  (Ex.)  310. 

'  Where  qualifying  words  such  as  "more  or  less"  or  ''about''  are  inserted 
in  a  contract  it  is  understood  that  they  are  intended  to  provide  for  a  reason- 
able variance  one  way  or  the  other.  Where  a  contract  was  made  for  "  about 
800  quarters  (more  or  less)"  of  rye,  345  quarters  was  considered  unreasonable  ex- 
cess :  Cross  v.  Eglin,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  106.  On  a  contract  for  spars  "  say 
about  600,"  a  tender  of  496  was  held  a  substantial  compliance  with  the  agreement. 
The  use  of  the  word  "say"  prefixed  to  "about"  was  said  to  indicate  special 
care  on  the  vendor's  part  to  guard  against  an  absolute  promise  as  to  quantity : 
McConnell  v.  Murphy,  L.  E.  5  P.  C.  203.  See  Morris  v.  Levison,  1  C.  P.  D. 
155 ;  McLay  v.  Perry,  44  L.  T.  N.  S.  152.  The  question  has  recently  received 
careful  consideration  in  the  Supreme  Court  of  the  United  States  and  the  fol- 
lowing rules  were  laid  down:  1.  Where  goods  are  identified  by  reference  to 
independent  circumstances,  such  as  an  entire  lot  deposited  in  a  certain  ware- 
house, and  the  quantity  is  named  with  the  qualification  of  "  about "  or  "  more 
or  less  "  or  words  of  like  import,  the  contract  applies  to  the  specific  lot ;  and 
the  naming  of  the  quantity  is  not  regarded  as  in  the  nature  of  a  warranty, 
but  only  as  an  estimate  of  the  probable  amount,  in  reference  to  which  good 
faith  is  all  that  is  required  of  the  party  making  it.  2.  When  no  such  inde- 
pendent circumstances  are  referred  to,  and  the  engagement  is  to  furnish  goods 
to  a  certain  amount,  the  quantity  specified  is  material,  and  governs  the  con- 
tract. Here  the  addition  of  the  qualifying  words  " about,"  " more  or  less" 
and  the  like  is  for  the  purpose  of  providing  against  slight  and  unimportant 
accidental  variations.  3.  If,  however,  in  the  last  case  the  qualifying  words 
are  supplemented  by  other  stipulations  or  conditions  which  give  them  a 
broader  scope  or  a  more  extensive  significancy,  then  the  contract  is  to  be  gov- 
erned by  such  added  stipulations  or  conditions:  Brawley  v.  United  States,  96 
U.  S.  168.  An  agreement  to  sell  "  a  cargo  of  old  railroad  iron,  to  be  shipped 
per  barque  Charles  WUliam,  .  .  .  about  300  or  350  tons,'''  was  held  to  be  com- 
plied with  by  delivery  of  as  much  as  the  vessel,  being  seaworthy  and  in  good 
order,  could  carry,  though  only  227  tons :  Pembroke  Iron  Co.  v.  Parsons,  5 
Gray,  589.  In  Creighton  v.  Comstock,  27  Ohio  St.  548  the  contract  was  to 
deliver  23,000  feet  of  lumber;  a  delivery  of  16,000  feet  was  held  too  large  a 
discrepancy  to  be  covered  by  the  words  "  more  or  less."  "  More  or  less  "  or 
equivalent  words  will  cover  any  variance  not  so  gross  as  naturally  to  raise  the 
presumption  of  fraud  or  radical  mistake  in  the  essence  of  the  contract :  Noble 
t).  Googins,  99  Mass.  231.    See  also  Schickle  r.  Chouteau,  10  Mo.  -A  pp.  241; 

82 


LECT.  II.]  OF    WRITTEN"   COISTTRACTS.  70 

where  a  man  contracts  in  his  own  name,  evidence  of  a 
custom  in  Liverpool  to  send  in  brokers'  notes,  without 
disclosing  the  principal's  name,  cannot  be  received,  in 
order  to  excuse  the  contractor  from  liability  as  having 
acted  as  a  broker  merely ;  and  Alderson,  B.,  said  the 
custom  offered  to  be  proved  was  a  custom  to  violate  the 
common  law  of  England  {I). 

It  must  be  borne  in  mind,  in  the  application  of  all 
these  rules,  that  evidence  of  words  being  used  in  a 
certain  sense,  or  that  certain  incidents  are  annexed  by 
custom  in  certain  places  and  amongst  certain  p-r-i-i 
*classes  of  persons,  does  not  raise  a  conclusion  of 
law  that  the  contracting  parties  used  the  terms  in  those 
senses,  or  that  the  incident  must  necessarily  be  annexed, 
but  it  is  only  evidence  from  which  a  jury  may  draw  the 
conclusion  that  such  was  the  meaning  of  the  parties, 
or  such  the  custom  or  usage  {m).  It  must  also  be 
borne  in  mind  that  although,  in  the  classes  of  cases 
mentioned,  evidence  of  usage  may  be  received  to  explain 
the  written  contract,  yet,  when  the  jury  have  decided  on 
the  meaning  of  the  term,  it  is  not  for  them  but  for  the 
Court  to  put  a  construction  upon  the  entire  contract  or 
document  {n). 

It  must  also  be  observed,  before  quitting  this  subject, 

(/)  Magee  v.  Atkinson,  2  M.  &  W.  (33  E.  C.  L.  R.)  440  ;  Jones  v.  Littledale, 
6  A.  &  E.  (33  E.  C.  L.  R.)  486.  See  also  Neilson  v.  James,  9  Q.  B.  D.  54(5 ; 
51  L.  J.  (Q.  B.)  369. 

(m)  Clayton  v.  Gregson,  5  A.  &  E.  (31  E.  C.  L,  R.)  302;  Smith  v.  Wilson, 
3  B.  &  Ad.  (23  E.  C.  L.  R.)  728. 

(n)  Hutchinson  v.  Bowker,  5  M.  &  W.  535 ;  Neilson  v.  Harford,  8  M.  &  W. 
806. 

Baltimore  Building  Co.  v.  Smith,  54  Md.  203 ;  Callmeyer  v.  Mayor,  83  N.  Y. 
116;  Kreiter  v.  Bomberger,  82  Pa.  St.  59.  In  Clapp  v.  Thayer,  112  Mass. 
296,  it  was  left  to  the  jury  to  say  whether  a  contract  for  "  about  400  castings  " 
was  su])stantially  complied  witli  by  delivery  of  331  casting?.  The  words 
"  not  less  than  "  amount  to  a  contract  that  the  delivery  shall  not  fall  short  of 
the  specified  quantity  :  Leeming  v.  Snaith,  16  Q.  B.  275. 

83 


71  OF   WRITTEN   CO^'TEACTS.  [lECT.  II. 

although  it  may  be  deduced  from  the  very  terms  of  the 
rules  of  which  we  have  been  treating,  that  if  the  con- 
tract itself  be  unusual,  evidence  of  the  usuge  and  custom 
of  the  trade  in  the  course  of  which  the  unusual  contract 
arose,  ought  not  to  be  received  to  explain  it  (o). 

It  seems  hardly  necessary  to  say  that  before  the  appli- 
cation of  these  rules  arises,  the  writing  to  which  they 
are  to  be  applied  must  really  be  a  complete  contract. 
But,  in  fact,  considerable  nicety  of  judgment  has  been 
found  requisite  upon  the  question  ^whether  in 
L      -I    fact  such  contract  does  exist.     Thus,  where  in  a 
printed  catalogue  of  articles  to  be  sold   by  auction,  a 
dressing  case  was  described  as  having  silver  fittings,  but 
at  the  sale  the  auctioneer  stated,  in  the  defendants  hear- 
ing, that  the  catalogue  was  incorrect  in  describing  the 
fittings  as  silver,  and  it  would  be  sold  as  having  plated 
fittings,  but  no  alteration  was  made  in  the  catalogue :  in 
an  action  for  the  price,  it  was  proposed  to  prove  what 
the  auctioneer  had  said,  but  this  was  objected  to,  as 
attempting  to  vary   by  parol  a  written  contract.     But 
the  Court  considered  the  evidence  to  be  unobjectionable, 
as  in  fact  the  auctioneer  declined  to  sell  by  the  printed 
particulars,   and    the   contract   of  sale   was   altogether 
oral   {p).     And  again,  where  goods  were  ordered  by 
letter  which  did  not  mention  any  time  for  payment,  and 
the  goods  were  accordingly  delivered  with  an  invoice 
equally  silent  upon  that  point,  it  was  decided  that  parol 
evidence  might  be  given  that  it  had  been  stipulated  by 
the  parties  that  certain  credit  should  be  given  which 
was  not  expired.     It  will  be  observed  that  in  this  in- 
stance the  letter  and  the  invoice  together  did  not  form 
a  contract,  which,  indeed,  did  not  exist  until  the  goods 

(o)  Lewis  V.  Marshall,  7  M.  &  G.  (49  E.  C.  L.  R.)  729;  Baxter  v.  Nurse,  6 
M.  &  G.  (46  E.  C.  L.  R.)  935. 

(p)  Eden  v.  Blake,  13  M.  &  AV.  614. 

84 


LECT.  II.]      OF  WRITTEN  CONTRACTS.  72 

were  delivered,  and  consequently  no  rule  was  violated 
in  receiving  evidence  that  credit  had  been  stipulated 
for.  "  The  documents  in  question,"  said  Alderson,  B., 
"  are  not  a  contract,  but  are  writings  *out  of  which,  _.  _,^-, 
with  other  things,  a  contract  is  to  be  made.  Tlie  '-  -' 
question  then  is,  whether  the  defendant  has  not  a  right 
to  adduce  evidence,  not  to  contradict  the  written  instru- 
ments, but  to  show  the  real  contract  of  which  the  paper 
contains  only  one  of  the  terms.  In  order  to  do  that, 
the  defendant  must  resort  to  the  previous  conversa- 
tion"  (q).  This  rule  has  been  w^ell  illustrated  by  a 
more  recent  case,  in  which  a  tradesman  having  in  an 
invoice  described  himself  as  a  seller  of  certain  goods,  it 
was  attempted  to  sue  him  for  a  deficient  delivery  and 
improper  packing  of  the  goods,  in  consequence  of  which 
they  became  deteriorated  on  a  voyage.  He  was,  it  was 
strongly  argued,  estopped  by  his  invoice  from  saying 
that  he  w^as  not  the  seller  of  the  goods.  But  he  was 
allowed  to  prove  that  the  goods  were  bought  by  the 
plaintiffs  from  another  person,  and  were  included  by 
the  defendant  in  his  invoice  at  the  plaintiffs'  request, 
and  for  their  convenience,  for  the  purpose  of  enabling 
them  to  pay  the  price  with  greater  facility.  "  No 
doubt,"  said  the  Chief  Baron,  "  an  invoice  is  in  some 
cases  very  strong,  and  the  strongest  possible,  evidence 
of  a  contract.  But  here  the  actual  contract  was  made 
before  the  invoice  was  contemplated,  and  therefore  it 
would  not  alter  the  original  terms  of  the  contract.  In 
many  cases  it  may  be  part  of  the  ^contract,  but  .-^.^ .-, 
here  the  actual  contract  was  a  verbal  one"  (r).  '-  -• 
The  other  point  to  which  I  alluded,  as  constituting 

(7)  Lockett  V.  Mcklin,  2  Ex.  93;  Stones  v.  Dowler,  29  L.  J.  (Ex.)  122.  See 
Jeffery  v.  Walton,  1  Stark.  (2  E.  C.  L.  R.)  267. 

(r)  Holding  v.  Elliott,  29  L.  J.  (Ex.)  134.  See  also  Malpas  v.  London  A 
B.  W.  Rail.  Co.,  L.  R.  1  C.  P.  336  ;  35  L.  J.  (C.  P.)  166,  commenting  on  Jefferj 
V.  Walton,  1  Stark.  (2  E.  C.  L.  R.)  267. 

85 


74  THE   STATUTE   OF   FKAUDS.  [lECT.  II. 

an  important  practical  distinction  between  simple  con- 
tracts by  mere  words  and  simple  contracts  in  writing  (s) 
is,  that  there  are  several  matters,  which,  although  they 
are  capable  of  becoming  the  subjects  oi  Simple  Contract, 
cannot,  nevertheless,  be  contracted  for  without  writing^ 
so  as  to  give  either  party  a  right  of  action  on  such  con- 
tract. 

By  far  the  most  important  class  of  contracts  subject 
to  this  observation  are  those  falling  within  the  enact- 
ments of  the  Statute  of  Frauds.  And  these  are  of  such 
very  constant  recurrence  in  practice,  that  it  will  be  right 
to  devote  some  time  to  their  consideration. 

The  Statute  of  Frauds  was  passed  in  the  twenty-nintli 
year  of  the  reign  of  Charles  II.,  and  is  the  3d  cap.  of 
the  statute-book  of  that  year.  It  is  said  to  have  been 
the  joint  production  of  Sir  Matthew  Hale,  Lord  Keeper 
Guilford,  and  Sir  Leoline  Jenkins,  an  eminent  civilian. 
The  great  Lord  Nottingham  used  to  say  of  it,  "  that 
every  line  was  worth  a  subsidy, ^^  ^  and  it  might  now  be 
said  with  truth,  that  every  line  has  cost  a  subsidy,  for  it 
is  universally  admitted  that  no  ^enactment  of  any 
L  '  J  legislature  ever  became  the  subject  of  so  much 
litigation.     Every  line,  and  almost  every  word  of  it  has 

(s)  See  p.  *41. 


'  But  in  Lord  Nottingham's  MS.  report  of  the  case  of  Ash  v.  Abdy  (1678), 
printed  in  3  Swanst.  644,  he  remarks:  "And  I  said  that  I  had  some  reason 
to  know  the  meaning  of  this  law,  for  it  had  its  first  rise  from  me,  who  brought 
the  bill  into  the  Lords'  House,  though  it  afterwards  received  some  additions 
and  improvements  from  the  judges  and  civilians."  In  Gilbert's  Eep.  in  Eq. 
171,  "Sir  Matthew  Hale  and  Sir  Leoline  Jenkins,  who  prepared  this  statute," 
are  referred  to,  but  Lord  Mansfield,  in  Windham  v.  Chetwynd,  1  Burr.  418, 
doubted  Lord  Hale's  authorship  of  the  statute,  as  "it  was  not  passed  till  after 
his  death,  and  was  brought  in,  in  the  common  way,  and  not  upon  any  reference 
to  the  judges ;"  and  Lord  Campbell,  in  his  Lives  of  the  Chancellors,  refers  to 
the  statute  as  deserving  more  praise  for  its  general  design  than  for  the  manner 
in  which  it  was  executed:  vol.  3,  p.  418. — R. 

For  a  fuller  account  of  this  famous  statute  and  of  its  application  or  adoption 
in  the  British  Colonies,  see  Keed,  Statute  of  Frauds,  chap.  I. 

86 


LECT.  II.]  THE   STATUTE   OF   FEAUDS.  75 

been  the  subject  of  anxious  discussion,  resulting  from 
the  circumstance  that  the  matters  which  its  provisions 
reguhite  are  those  which  are  of  everyday  occurrence  in 
the  course  of  our  transactions  with  one  another.^ 

The  chief  object  of  passing  the  statute  w^as,  to  pre- 
vent the  facility  to  frauds,  and  the  temptation  to  perjury, 
held  out  by  the  enforcement  of  obligations  depending 
for  their  evidence  upon  the  unassisted  memory  of  wit- 
nesses. How  great  this  temptation  and  facility  in 
their  own  nature  are,  is  obvious;  and,  accordingly,  the 
statute,  in  the  1st  section,  declares  its  own  enactment  to 
be  "for  the  prevention  of  many  fraudulent  practices, 
which  are  commonly  endeavoured  to  be  upheld  by  per- 
jury and  subornation  of  perjury;"  and  then  it  goes 
on  to  provide  for  various  cases,  in  which  it  was  appre- 
hended that  such  practices  were  most  likely  to  occur. 
The  1st  of  the  twenty-five  sections  of  which  it  consists 
is  levelled  at  parol  conveyances  of  land,  and  contains 
the  celebrated  enactment,  of  which  you  have  doubtless 
often  heard,  that  they  shall  create  estates  at  will  only. 
The  2d  section  excepts  from  this  enactment  the  case  of 
leases  not  exceeding  three  years  from  the  making  thereof, 
and  reserving  two-thirds  of  the  annual  value  as  rent. 

The  3d  section  forbids  parol  assignments,  grants, 
or  surrenders;  the  5tli  is  levelled  at  unattested 
*devises  ;  the  6tli  at  secret  revocations  of  devises  ;  r-.-..^^-, 
the  7th  at  joaroZ  declarations  of  trust;  the  19th  ^  -^ 
and  20th  ngnin^t  nicncupative  wills  of  personalty;  and 
the  21st  against  verbal  alterations  in  written  wills. 

But  the  two  sections  which   mamly  affect  contracts^ 


^  The  defence  of  the  Statute  of  Frauds  is  personal,  and  can  only  be  relied  on 
by  the  parties  or  their  privies:  Chicago  Dock  Co.  v.  Kinzie,  49  III.  2S9.  Con- 
tracts within  the  Statute  of  Frauds  are  not  illegal,  unless  put  in  writing;  but 
only  not  capable  of  being  enforced — an  immunity  which  the  defendant  on  the 
trial  may  waive  :  Montgomery  v.  Edwards,  46  Vt.  151. — s. 

87 


76  THE  STATUTE   OF   FEAUDS.  [lECT.  n. 

and  which,  consequently,  are  chiefly  important  to  the 
subject  of  this  Lecture,  are  the  4th  and  17th. 

The  4th  section  enacts — "  That  no  action  shall  be 
brought  to  charge  any  executor  or  administrator  upon 
any  special  promise  to  answer  damages  out  of  his  own 
estate ;  or  whereby  to  charge  the  defendant  upon  any 
special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person ;  or  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  mar- 
riage ;  or  upon  any  contract  or  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them  ; 
or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof; 
unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him  lawfully 
authorized.'* 

The  contracts  provided  for  by  this  section  are,  there- 
fore, as  you  will  have  observed — 

1st.  Promises  by  an  executor  or  administi'ator  to  an- 
swer damasres  out  of  his  own  estate. 

*2d.  Promises  to  answer  for  the  debt,  default, 
•-      -'or  miscarriage  of  another  person. 

3d.  Agreements  made  in  consideration  of  marriage. 

4th.  Contracts  or  sales  of  lands,  tenements,  or  here^ 
ditaments,  or  any  interest  in  or  concerning  them. 

5th.  Agreements  not  to  be  performed  within  the  space 
of  a  year  after  the  making  thereof. 

The  latter  part  of  the  section  applies  equally  to  each 
of  these  five  sorts  of  contract,  which  are  equally  pro- 
hibited from  being  made  the  subject-matter  of  action, 
unless  the  agreement  or  some  note  or  memorandum  of  it 
shall  be  in  writing,  signed  by  the  party  to  be  charged  or 
some  person  thereunto  by  him  lawfully  authorized. 


LECT.  II.]  THE   STATUTE   OF   FRAUDS.  77 

Now,  it  has  been  decided — and  the  decision  you  will 
observe  was  (t)  equally  applicable  to  each  of  the  five 
descriptions  of  contract — that  in  consequence  of  the  intro- 
duction of  the  word  "agreement  "  the  consideration  as  well 
as  the  promise  must  appear  in  writing.  That  was  settled  by 
the  well-known  cases  of  Wain  v.  Warlters  {u),  Saunders 
V.  Wakefield  {x),  and  Jenkins  v.  Reynolds  (y).  For,  the 
word  agreement,  comprehending  what  is  to  be  done  on 
both  sides,  comjDrehends  of  course  the  consideration  for 
the  promise  as  well  as  the  '^promise  itself.  The 
judgment  of  Lord  Ellenborough,  in  AYaiu  v.  ^  J 
Warlters,  very  clearly  explains  the  reasons  upon  which 
this  doctrine  is  founded. 

"  The  clause  in  question  in  the  Statute  of  Frauds," 
says  his  Lordship,  "  has  the  word  agreement  ('  unless  the 
agreement  upon  which  the  action  is  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,^  &c.) : 
and  the  question  is,  whether  that  word  is  to  be  under- 
stood in  the  loose  incorrect  sense  in  which  it  may  some- 
times be  used  as  synonymous  to  promise  or  undertaking, 
or  in  its  more  proper  and  correct  sense,  as  signifying  a 
mutual  contract,  on  consideration,  between  two  or  more 
parties  ?  The  latter  appears  to  me  to  be  the  legal  con- 
struction of  the  word,  to  which  we  are  bound  to  give  its 
proper  effect:  the  more  so  when  it  is  considered  by 
whom  that  statute  is  said  to  have  been  drawn,  by  Lord 
Hale,  one  of  tlie  greatest  judges  who  ever  sat  in  West- 
minster Hall,  who  was  as  competent  to  express  as  he 
was  able  to  conceive  the  provisions  best  calculated  for  car- 
rying into  effect  the  purposes  of  that  law.  The  person 
to  be  charged  for  the  debt  of  another  is  to  be  charged, 
in  the  form  of  the  proceeding  against  him,  upon  hU 
special  promise;  but  without  a  legal  consideration  to 

(0  See  post,  p.  *79.  (w)  5  East,  10. 

[x)  4  B.  &  Aid.  (6  E.  C.  L.  R.)  595.  (y)  3  B.  &  B.  (7  E.  C.  L.  R.)  14. 

89 


78  THE   STATUTE   OF   FRAUDS.  [lECT.  TI. 

sustain  it,  that  promise  would  be  nudum  pactum  as  to 
him.  The  statute  never  meant  to  enforce  any  promise 
which  was  before  invalid,  merely  because  it  was  put  in 
r*7Q-j  writing.  The  ^obligatory  part  is  indeed  the 
promise,  which  will  account  for  the  word  prom- 
ise being  used  in  the  first  part  of  the  clause ;  but  still,  in 
order  to  charge  the  party  making  it,  the  statute  proceeds 
to  require  that  the  agreement  (by  which  must  be  under- 
stood the  agreement  in  respect  of  which  the  promise  was 
made)  must  be  reduced  into  writing.  And  indeed  it 
seems  necessary  for  effectuating  the  object  of  the  statute, 
that  the  consideration  should  be  set  down  in  writing  as 
well  as  the  promise;  for,  otherwise,  the  consideration 
might  be  illegal,  or  the  promise  might  have  been  made 
upon  a  condition  precedent,  which  the  party  charged 
may  not  afterwards  be  able  to  prove,  the  omission  of 
which  would  materially  vary  the  promise,  by  turning 
that  into  an  absolute  promise  which  was  only  a  condi- 
tional one ;  and  then  it  would  rest  altogether  on  the  con- 
science of  the  witness  to  assign  another  consideration  in 
the  one  case,  or  to  drop  the  condition  in  the  other,  and 
thus  to  introduce  the  very  frauds  and  perjuries  which  it 
was  the  object  of  the  Act  to  exclude,  by  requiring  that 
the  agreement  should  be  reduced  into  writing,  by  which 
the  consideration  as  well  as  the  promise  would  be 
rendered  certain."^     The  point,  however,  actually  de- 


'  The  decisions  upon  this  point  have  been  various  and  often  in  the  same 
State  have  been  conflicting.  The  English  cases  are  stated  in  the  text.  Out- 
side of  Great  Britain  it  would  appear  that  it  has  been  considered  necessary, 
apart  from  precise  statutory  directions  for  the  consideration  to  appear  in  the 
memorandum  in  Canada,  Gerow  v.  Clark,  9  U.  C.  Q.  B.  223,  and  in  Alabama, 
Eigby  V.  Norwood,  34  Ala.  132;  Delaware,  "Weldin  v.  Porter,  4  Iloust.  239; 
Illinois,  Prather  v.  Vineyard,  9  111.  48  ;  Patmorr.  Haggard,  78  111.  009  ;  Mary- 
land, Ordeman  v.  Lawson,  49  Md.  155;  Culbertson  v.  Smith,  52  lb.  634;  and 
"Wisconsin,  Taylor  v.  Pratt,  3  Wis.  692.  The  weight  of  authority  in  America, 
however,  is  the  other  way,  and  it  has  been  held  tliat  unless  expressly  required 
by  statute  the  memorandum  need  not  express  the  consideration  in  the  United 

90 


lECT.  II.]  THE   STATUTE   OF   FEAtJDS.  79 

cided  in  Wain  v.  Warlters,  is  no  longer  law  as  to  the 
particular   description  of  contracts  to  which  tliat  case 

States  Courts,  lyWolf  t;.  Rabaud,  1  Peters,  501 ;  Fowler  i-.  MacDonald,  4  Cr.  C. 
C.  297  ;  How  v.  Kemball,  2  McLean,  107  ;  Coxnecticut,  Sage  v.  Wilson,  6  Conn. 
81 ;  Nichols  v.  Johnson,  10  lb.  198  ;  Florida,  Dorman  v.  Bigelow,  1  Flor.  290; 
Georgia,  Baker  v.  Herndon,  17  Ga.  571 ;  Davis  v.  Tift,  11  Am.  L.  Eec.  701 ; 
Louisiana,  Einggold  v.  Newkirk,  3  Ark.  108  (under  the  civil  law) ;  Massachu- 
setts, Hunt  V.  Adams,  5  Mass.  360 ;  Packard  v.  Richardson,  17  lb.  127  ;  Mis- 
sissippi, Wren  v.  Pearce,  4  Sm.  &  M.  9 1 ;  Missouri,  Ivory  v.  Murphy,  86  Mo. 
539 ;  New  Hampshire,  Britton  v.  Angier,  48  N.  H.  422  ;  Lang  v.  Henry,  54 
lb.  59 ;  North  Carolina,  Ashford  v.  Robinson,  8  Ired.  114 ;  Miller  v.  Irvine,  1 
Dev.  &  Bat.  103 ;  Ohio,  Reed  v.  Evans,  17  Ohio,  128 ;  Duckwall  v.  Rogers,  15 
Ohio  St.  546  ;  Pennsylvania,  Paul  v.  Stackhouse,  38  Pa.  St.  306 ;  Bowser  v. 
Cravener,  56  lb.  132 ;  Giltinan  v.  Strong,  64  lb.  245 ;  South  Carolina,  Lecat 
V.  Tavel,  3  McCord,  158 ;  Fyler  v.  Givens,  3  Hill,  52 ;  GrifEn  v.  Rembert,  2 
Rich.,  N.  S.,  114 ;  Tennessee,  Campbell  v.  Findlay,  3  Humph.  332 ;  State  v. 
Humphreys,  10  lb.  444 ;  Whitby  v.  Whitby,  4  Sneed,  479 ;  Texas,  Ellett  v. 
Britton,  10  Tex.  210;  Fulton  v.  Robinson,  55  lb.  404;  Vermont,  Ide  v. 
Stanton,  15  Vt.  689  ;  Sheehy  v.  Adarene,  41  lb.  541 ;  West  Virginia,  Capehart 
V.  Hale,  6  W.  Va.  550  In  New  York  the  question  has  been  unusually  fruit- 
ful of  discussion  and  litigation.  From  1830  until  1863  a  statutory  provision 
required  expressly  a  statement  of  the  consideration  in  the  memorandum. 
During  this  period  it  had  been  held  in  numerous  cases  that  the  statement 
of  a  consideration  was  essential,  and  that  the  statute  required  an  explicit  de- 
claration of  it ;  since  the  repeal  of  this  act  there  has  been  some  conflict,  but 
the  weight  of  authority  appears  to  be  that  the  effect  of  the  repeal  was  simply 
to  do  away  with  this  added  statutory  regulation,  so  that  while  an  expression 
of  consideration  was  still  essential,  any  words  from  which  it  could  be  gathered 
or  inferred  were  enough.  See  Sears  v.  Brink,  3  Johns.  215  ;  Kerr  v.  Shaw,  13 
lb.  236 ;  Thompson  v.  Blanchard,  3  Comst.  335 ;  Wright  v.  Weeks,  25  N.  Y. 
155  ;  Burrell  v.  Root,  40  lb.  496  ;  Marsh  v.  Chamberlain,  2  Lans.  293  ;  May  v. 
Bank  of  Malone,  9  Hun,  111  ;  Speyers  v.  Lambert,  1  Sweeny,  338  ;  Castle  v, 
Beardsley,  10  Hun,  343. 

All  the  statutes  adopted  in  the  United  States  have  not  been  in  precisely  the 
Barae  language.  In  some  the  memorandum  has  been  required  to  contain  the 
"promise,"  in  others  the  "  agreement,"  and  in  others  the  "promise  or  agree- 
ment," and  the  decision  of  the  question  has  often  been  rested  on  this  ground, 
the  court  holding  that  "agreement"  embraced  a  consideration,  while  "promise" 
did  not :  Thompson  v.  Hall,  16  Ala.  207  ;  Dorman  i-.  Bigelow,  1  Flor.  290 ; 
Ratliffe  v.  Trout,  6  J.  J.  Marsh.  606  ;  Pearce  v.  Wren,  4  Sm.  &  M.  97  ;  Britton 
V.  Angier,  48  N.  H.  422 ;  Nelson  v.  Dubois,  13  Johns.  175 ;  Campbell  v.  Find- 
lay,  3  Humph.  332 ;  Ellett  v.  Britton,  10  Tex.  200 ;  Violett  v.  Patton,  5  Cranch. 
151. 

As  a  general  rule  it  has  been  held  that  the  consideration  (where  required  to 
be  expressed)  need  not  be  explicitly  stated,  it  is  sufficient  if  it  can  be  in- 
ferred or  made  out  from  the  memorandum.  See  cases  supra  and  Forth  v, 
Stanton,  1  Saunders,  210 ;  Bainbridge  v.  Wade,  16  Q.  B.  (71  E.  C.  L.  R.j  98 ; 

91 


79  THE   STATUTE   OF   FRAUDS.  [lECT.  II 

relates;  for  now  by  stat.  19  &  20  Vict.  c.  97  (Mercantile 
r*ft01  "^^^^^  Amendment  Act,  185G),  s.  3,  if  ""llie  si)ecial 
promise  to  answer  for  the  debt,  default,  or  mis 
carriage  of  another  be  in  writing  duly  signed,  it  is  not 
necessary  that  the  consideration  should  appear  in  the 
writing  also  {z). 

The  rule,  however,  laid  down  in  the  above  case  ap- 
plies to  the  other  four  descriptions  of  contract.  There- 
fore, where  a  contract  was  made  in  writing  between  a 
bookseller  and  an  author,  which  evidently  was  to  endure 
for  more  than  a  year,  and  which  contained  stipulations 
to  be  performed  by  the  bookseller,  but  none  to  be  jier- 
formed  on  the  part  of  the  author,  either  express  or  which 
could  be  made  out  by  necessary  implication  ;  it  was 
decided  that  an  action  could  not  be  supported  u})on  this 
contract  for  want  of  any  consideration  appearing  upou 
its  face  (a). 

But  this  consideration  need  not  appear  in  express 
terms ;  it  is  sufficient,  as  will  hereafter  appear,  that  any 
person  of  ordinary  capacity  must  infer  from  the  ])erusal 
of  the  memorandum  or  note  that  such  and  no  other  was 
the  consideration  upon  which  the  undertaking  was 
given  {d).  It  must  appear  in  express  terms,  or  by 
necessary  implication  (c). 

The  same  reasoning  as  that  employed  by  Lord  Ellen- 

(z)  See  post,  Guaranties. 

(a)  Sweet  v.  Lee,  3  M.  &  G.  452. 

(b)  Per  Tindal,  C.  J.,  Hawes  v.  Armstrong,  1  Bing.  N.  C.  (27  E.  C.  L.  E.) 
765. 

(c)  Per  Parke,  B.,  Jarvis  v.  Wilkins,  7  M.  &.  W.  412. 


Jarvis  r.  Wilkins,  7  M.  &  W.  410;  Peate  v.  Dickens,  5  Tyr.  124;  Shadwell  v. 
Shadwell,  9  C.  B.  N.  S.  (99  E.  C.  L.  R.)  173 ;  Greenham  v.  Watt,  25  U.  C.  Q. 
B.  369 ;  Church  v.  Brown,  21  N.  Y.  316  ;  Holling  v.  Munchus,  65  Ala.  501 ;  Otis 
V.  ITazeltine,  27  Cal.  82;  Tingley  v.  Cutter,  7  Conn.  295  ;  Hargraves  v.  Cooke, 
15  Ga.  ."24;  Wilson  Sewing  Machine  Co.  i'.  Schnell,  20  Minn.  40;  Hiitton  v. 
Padgett,  26  Md.  431  ;  Ordeman  v.  Lawson,  49  Md.  155  ;  O'Bannon  v.  Chiinui-sero, 
8  Mootiua,  422 ;  Simons  v.  Steele,  36  N.  H.  73 ;  Laing  v.  Lee,  Spencer,  339. 

92 


LECT.  II.]  THE   STATUTE   OF   FRAUDS.  80 

borough  in  Wain  v.  Warlters,  clearly  shows  that  all  the 
terms  of  the  agreement,  as  well  *as  the  eonsidera-  r:^o-|-| 
tion,  must  be  expressed  in  the  memorandum. 

Thus  an  auctioneer's  receipt  given  for  the  deposit 
money  on  a  sale  is  insufficient  to  prove  the  agreement  of 
sale  if  it  does  not  mention  the  price  (d).  An  agreement 
for  a  lease  not  specifying  a  definite  term,  does  not  satisfy 
the  requirement  of  the  statute  (e).  Thus  a  memoran- 
dum in  the  following  words  is  insufficient  as  such  an 
agreement: — "August  11,  1866.  Received  of  D.  the 
sum  of  £10  as  part  purchase-money  of  £390,  of  4  cot- 
tages, situated  23,  24,  28,  and  29  W.  Street,  B.,  ground 
rent  £3  each,  purchase  to  be  completed  within  one 
mouth  from  this  date,  the  lease  and  counterpart  to  be 
paid  for  by  D.,  and  to  be  £5,  exclusive  of  stamps. — J. 
E."  It  will  be  observed  that  this  memorandum  defines 
the  property,  the  price,  and  the  parties ;  but  though  it  is 
obvious  that  a  lease  is  intended  to  be  conveyed,  yet  the 
duration  of  that  lease  is  not  expressed  (/).  So  an 
executory  agreement  for  a  lease  (^.  e.,  an  agreement  for 
a  lease  to  commence  at  some  subsequent  time),  does  not 
satisfy  the  statute  unless  it  can  be  collected  from  it  on  what 
day  the  term  is  to  begin  {g).  So  if  the  ••"'names  p.5.g^-, 
of  both  buyer  and  seller  are  not  mentioned  in  •-  J 
the  agreement,  or  at  all  events  if  they  are  not  sufficiently 
ascertained  by  description  therein,  it  is  insufficient. 
Thus,  in  Williams  v.  Lake  ih),  a  guaranty  signed  by 
the  defendant  was  in  these  w^ords — "April  27,  1857. 

{d)  Blagden  v.  Bradbear,  12  Ves.  466 ;  Elmore  r.  Kingscote,  5  B.  &  C.  (11 
E.  C.  L.  R.)  583 ;  Goodman  v.  Griffiths,  26  L.  J.  (Ex.)  145;  1  H.  &  N.  574. 

(e)  Clinan  v.  Cooke,  1  Sch.  &  Lefr.  22 ;  Fitzmaurice  v.  Bagley,  Ex.  Ch. ;  27 
L.  J.  (Q.  B.)  143. 

(/)Dolling  V.  Evans,  36  L.  J.  (Ch.)  474. 

(jr)  Marshall?;.  Berridge,  19  Ch.  Div.  233;  51  L.  J.  (Ch.)  329.  In  such  a 
case  there  is  no  inference  that  the  term  is  to  commence  from  the  date  of  the 
agreement,  in  the  absence  of  language  pointing  to  that  conclusion.     lb. 

(A)  2  E.  &  E.  (105  E.  C.  L.  R.)  34i>,  29  L.  J.  (Q.  B.j  1. 

93 


82  THE   STATUTE   OF   FRAUDS.  [lECT.  II. 

Sir,  I  beg  to  inform  you  that  I  shall  see  you  paid  to  the 
sum  of  £800  for  the  ensuing  building  which  you  under- 
take to  build  for  Messrs.  Thomas  and  Owens,  of  Cap 
Cocli.  Thomas  Lake."  The  defendant  had  delivered 
this  to  one  John  Thomas,  intending  it  to  be  given  to 
Thomas  Jones,  who  was  in  treaty  to  build  houses  for 
Thomas  and  Owens,  but  Jones  refusing  to  build  them, 
they  agreed  with  plaintiff  to  build  them,  and  gave 
him  the  guaranty.  Of  this  the  defendant  was  ig- 
norant, but  he  afterwards  assented  to  the  plaintiff 
having  the  guaranty.  It  was  held  that  an  action  could 
not  be  brought  upon  the  guaranty,  as  the  plaintiff's 
name  did  not  appear  in  it.  "  The  objection,"  said  Cock- 
hum,  C.  J.,  "  that  there  was  no  agreement  or  memoran- 
dum, or  note  thereof  within  the  Statute  of  Frauds,  must 
prevail,  on  the  simple  ground  that  in  order  that  any 
agreement  or  memorandum  should  be  sufficient,  it  is  ab- 
solutely necessary  that  the  names  of  the  parties  to  the 
agreement  should  appear  on  its  face.  It  is  said  that  the 
terms  "^'are  satisfied  if  the  note  of  the  agreement 
•-  -I  contains  a  proposal  which  is  acceded  to  by 
words.  But  I  cannot  concur  in  that  way  of  putting  it ; 
the  only  difference  between  an  *  agreement '  and  the 
*  note '  of  an  agreement  is,  that  in  the  one  instance  a 
formal  agreement  is  meant,  and  in  the  other  something 
not  so  particular  in  form  and  technical  accuracy,  but 
still  containing  the  essentials  of  the  agreement.  The 
essentials  of  the  agreement  must  be  stated,  that  is  to  say, 
the  subject-matter  of  it  {i),  the  extent  of  the  liability 
contracted  thereby,  if  any,  and  the  names  of  both  par- 
ties to  it :  and,  I  tliink,  not  only  is  that  the  fair  con- 
struction to  be  put  upon  the  statute,  but  when  we  look 

(i)  As  to  what  amounts  to  a  sufficient  description  of  the  property  in  the 
case  of  a  sale  of  real  estate,  so  as  to  satisfy  the  statute,  see  Shardlow  v.  Cot- 
terell,  20  Ch.  Div.  90  (C.  A.) ;  51  L.  J.  (Ch.)  353,  (reversing  18  Ch.  Div.  280, 
60  L.  J.  (Ch.)  613),  and  the  authorities  there  cited. 

94 


LECT.  II.]  THE   STATUTE   OF   FRAUDS.  83 

at  the  miscliief  intended  to  be  prevented,  it  is  clear  that 
the  writing  which  constitutes  a  liability  on  one  side, 
without  stating  the  name  of  the  other  party  to  whom  it 
was  given,  would  lead  to  the  very  thing  which  the 
statute  was  intended  to  prevent,  namely,  fraud.  There 
might  have  been  an  agreement  for  building  another  set 
of  houses,  or  the  agreement  might  have  been  of  the 
same  houses,  and  this  miglit  have  been  put  into  the 
hands  of  some  person  to  whom  the  defendant  never  in- 
tended to  give  a  guaranty,  and  it  might' be  enforced  by 
*parol  evidence  showing  that  it  was  intended  to  p^^ .-, 
come  into  the  hands  of  that  person,  while  the  '-  -^ 
defendant  might  resist  it  by  parol  evidence,  so  that  the 
very  contest  would  take  jolace  which  the  statute  was  in- 
tended to  prevent.  The  mischief  would  not  be  effect- 
ually remedied,  unless  we  held  that  this  guaranty  was 
not  sufficient." 

The  statute,  however,  is  satisfied  if  the  vendor  and 
purchaser  are  sufficiently  described,  though  their  names 
do  not  appear  (J).  Thus,  upon  a  sale  by  auction  of 
real  estate  in  lots,  the  particulars  stated  that  the  sale  was 
by  direction  of  the  "  proprietor,"  but  the  name  of  the 
vendor  did  not  appear.  A  memorandum  on  a  copy  of 
the  particulars  was  signed  by  the  purchaser  of  one  of 
the  lots,  and  by  the  auctioneer  on  behalf  of  the  vendor. 
It  was  held  that  the  vendor  was  sufficiently  described, 
and  that  the  memorandum  was  sufficient  to  satisfy  the 
requirements  of  the  statute  (^).  On  the  other  hand, 
where  the  particulars  and  conditions  did  not  disclose  the 
vendor's  name,  and  in  some  places  spoke  of  "  vendors  " 
in  the  plural ;  although  for  the  most  part  "  vendor  "  was 

(;■)  Hood  V.  Lord  Barrington,  L.  R.  6  Eq.  218  ;  Sale  v.  Lambert,  L.  R.  18 
Eq.  1,  43  L.  J.  (Ch.)  470;  Potter  v.  Duffield,  L.  R.  18  Eq.  4,  43  L.  J. 
(Ch.)  472.  See  also  Williams  v.  Byrnes,  1  Moo.  P.  C.  N.  S.  154;  9  Jur.  N. 
e.  363. 

(^•)  Sale  V.  Lambert,  ubi  supra. 

95 


84  THE   STATUTE   OF   FEATJDS.  [lECT.  II. 

used,  and  a  memorandnm  endorsed  on  a  copy  of  the 
particulars  and  conditions  was  signed  by  the  "^'auc- 
■-  '  -^  tioneer  on  behalf  of  the  "  vendor,"  the  descrip- 
tion was  held  insufficient  (/).  In  Kossiter  v.  Miller  (m) 
"  proprietors,"  in  Catling  v.  King  (71)  "  trustee  selling 
under  a  trust  for  sale,"  was  held  a  sufficient  description. 

There  is  another  observation  applicable  to  all  the  five 
cases  provided  for  by  this  section  of  the  statute,  namely, 
that  the  agreement,  the  meaning  of  which  word  I  have 
just  explained,  need  not  be  contained  in  a  single  writing, 
but  may  be  collected  from  several.  You  will  find  that 
established  by  many  cases. 

The  purchaser  of  flour  wrote  to  the  vendor  as  follows 
— "  I  hereby  give  you  notice  that  the  corn  you  delivered 
to  me  in  part  performance  of  my  contract  with  you  for 
one  hundred  sacks  of  good  English  seconds  flour  at 
455.  a  sack,  is  of  so  bad  a  quality  that  I  cannot  sell  it  or 
make  it  into  saleable  bread.  The  sacks  of  flour  are  at 
my  shop,  and  you  will  send  for  them,  otherwise  I  shall 
commence  an  action."  To  this  the  vendors  answered  by 
their  attorney :  "  Messrs.  L.  consider  that  they  have 
performed  their  contract  with  you  as  far  as  it  has  gone, 
and  are  ready  to  complete  the  remainder ;  and  r^op-i 
*unless  the  flour  is  paid  for  at  the  expiration  of 
one  month,  proceedings  will  be  taken  for  the  amount." 
The  two  writings  were  considered  to  constitute  a  suffi- 
cient memorandum  of  the  contract.  This  case  was 
indeed  decided  upon  the  17th  section  of  the  Statute  of 
Frauds,  but  the  reason  of  the  decision  applies  equally  to 

{I)  Potter  V.  DufEeld,  vbi  supra.  See  also  Williams  v.  Jordan,  6  Ch.  Div. 
517;  46  L.  J.  (Ch.)  681. 

(m)  5  Ch.  Div.  648,  46  L.  J.  Ch.  228,  737 ;  3  App.  Cas.  1124 ;  48  L.  J.  (Ch.) 
10  (H.  L.).  The  H.  of  L.  affirmed  as  to  this  point,  both  the  M.  R.  and  C.  A., 
but  reversed  the  latter  as  to  the  question  of  there  being  a  concluded  agree- 
ment. 

(n)  5  Ch.  Div.  660;  46  L.  J.  (Ch.)  384. 

96 


LECT.  II.]  THE    STATUTE    OF    FRAUDS.  86 

the  4th  section  (o).  In  another  instance,  on  a  sale  by 
auction,  the  particulai-s  of  sale  described  the  premises,  and 
the  conditions  of  sale  were  on  the  same  sheet.  The 
plaintiff  purchased  the  property,  and  on  paying  the 
deposit,  signed  an  agreement  endorsed  on  the  before- 
mentioned  particulars  and  conditions,  in  the  words  fol- 
lowing : — "  I  do  hereby  acknowledge  myself  the  pur- 
chaser of  the  property  described  in  the  within  particulars 
at  and  for  the  price  or  sum  of  £94  10s.,  and  I  do  here- 
by undertake  and  agree  to  perform  my  part  of  the 
conditions  therein  specified,  in  furtherance  of  w^hich  I 
have  this  day  paid  the  sum  of  £18  18s.,  being  the 
amount  of  the  deposit,  as  also  the  sum  of  £2  7s.,  being 
my  moiety  of  the  government  duty.  As  witness  my 
hand  this  11th  day  of  June,  1857,  Isaac  Dobell "  (the 
plaintiff).  Neither  the  defendant  nor  any  one  for  him 
signed  the  agreement,  nor  was  his  name  mentioned  in  it 
or  in  the  particulars  or  conditions,  except  that  in  the 
particulars  of  sale  he  was  referred  to  for  particulars 
of  the  premises.  On  discovering  ^afterwards  that  rH:or--| 
a  small  yard  mentioned  in  the  particulars  was 
not  comprised  in  the  lease  purchased,  which  defect  was 
not  known  at  the  time  of  sale  to  either  party,  the  plain- 
tiff's attorney  wrote  to  the  defendant  as  follows  : — "  We 
are  instructed  to  inform  you  that  Mr.  Dobell,  in  conse- 
quence of  your  not  having  shown  a  good  title  to  the 
premises  offered  for  sale  on  the  11th  instant  as  described 
in  the  particulars,  declines  taking  the  property,  and  we 
have  to  request  that  you  will  direct  the  auctioneer  to 
return  the  deposit  and  duty  received  by  him  of  Mr. 
Dobell,  and  that  you  will  remit  to  us  the  expenses 
incurred  in  this  matter,  and  make  some  arrangement  for 
payment  thereof."     On  this  the  defendant  sent  a  letter 

(o)  Jackson  v.  Lowe,  1  Bing.  (8  E.  C.  L.  R.)  9.     See  Barker  v.  Allan,  29  L. 
J.  (Ex.)  100. 

7  97 


87  THE   STATUTE    OF    FEAUDS.  [lECT.  II. 

signed  by  him  to  the  plaintiff's  attorney,  in  which  he 
mentioned  having  "  stated  the  case  to  counsel  relating  to 
our  sale  to  Mr.  Dobell,"  and  added,  "  having  obtained 
his  opinion  thereon,  I  beg  to  acquaint  you  that  the  rea- 
sonable compensation  to  which  he  is  entitled  (alluding 
to  a  provision  in  the  condition  for  compensation)  on  our 
securing  to  him  a  lease  of  the  yard  adjoining  the  Aber- 
deen Arms,  is  £11  16s.  If  he  is  willing  to  accede  to 
this,  the  business  may  be  completed  without  delay ;  if 
not,  we  beg  to  be  understood  as  now  calling  on  Mr. 
Dobell  to  settle  the  compensation  in  the  way  provided 
for.  If  he  declines  this,  we  presume  you  will  accept 
Chancery  process  for  him  at  our  suit."  In  another 
letter  to  the  plaintiff's  attorney,  the  defendant  expressly 
p!:QQ-|  *inentioned  the  abatement  in  the  price  as  being 
according  to  the  condition  of  sale.  It  wil]  be 
observed  in  this  case  that  the  letters  of  the  defendant 
refer  expressly  and  distinctly  to  the  conditions  of  sale, 
and  he  had  in  his  hands,  or  those  of  his  auctioneer,  at  the 
very  time,  the  conditions  of  sale  signed  by  the  plaintiff 
to  which  reference  is  made,  so  that  no  parol  evidence  of 
any  kind  was  requisite  to  show  a  contract  binding  both 
parties,  except  evidence  of  the  handwriting  of  each, 
which  must  be  adduced  in  all  cases.  For  these  rea- 
sons the  Court  of  King's  Bench  was  of  opinion  that 
there  was  a  sufficient  contract  within  the  Statute  of 
Frauds  {p).  Neither  is  it  material  that  the  letters  out 
of  which  the  contract  may  be  proved,  are  written  to 
third  parties  {q),  even  to  the  writer's  own  agent,  pro- 
vided the  contract  be  fully  recognized  therein  (r).     A 

(p)  Dobell  V.  Hutchinson,  3  A.  &  E.  (30  E.  C.  L.  R.)  355;  Eidgway  v. 
Wharton,  27  L.  J.  (Ch.)  46 ;  6  H.  of  L.  C.  238;  Bauraann  v.  James,  L.  E.  3 
Ch.  508 ;  Long  v.  Millar,  4  C.  P.  D.  450 ;  48  L.  J.  (Q.  B.,  etc.)  596  ;  Cave  v, 
Hastings,  7  Q.  B.  D.  125;  50  L.  J.  (Q.  B.)  575. 

(</)  Welford  V.  Beazley,  3  Atk.  503 ;  Owen  v.  Thomas,  3  Myl.  &  K.  353. 

(r)  Gibson  v.  Holland.  L.  E.  1  C.  P.  1 ;  35  L.  J.  (C.  P.)  5. 
98 


LECT.  TI.]  THE    STATUTE    OF    FRAUDS.  88 

remarkable  instance  of  the  ai:>plication  of  this  rule  is 
afforded  by  the  case  of  Hammersley  v.  Baron  de  Biel  (s). 
It  will  be  recollected  that  one  of  the  cases  in  which  a 
written  contract  or  memorandum  is  required  by  the 
Statute  of  Frauds,  is  where  any  promise  is  made  in  con- 
sideration of  marriage.  In  *tlie  present  instance,  pgrn 
proposals  of  marriage  had  been  written  by  the 
lady's  brothers  by  her  father's  authority,  which  were  de- 
scribed therein  to  be  the  bases  of  the  arrangement,  subject, 
of  course,  to  revision ;  and  as  sufficient  for  the  proposed 
husband  to  act  upon.  These  proposals  were  not  signed. 
A  letter,  afterwards  written  and  signed  by  the  father 
after  the  marriage,  admitting  the  terms  of  the  written 
proposals,  was  considered  ns  a  recognition  of  tJiem  as 
his  agreement,  and  sufficient  within  the  Statute  of  Frauds. 
But  though,  where  there  are  several  papers,  the 
agreement  may  be  collected  from  them  all,  provided 
they  are  sufficiently  connected  in  sense  among  them- 
selves, so  that  a  person  looking  at  them  all  together  can 
make  out  the  connection  and  the  meaning  of  the  whole 
without  the  aid  of  any  verbal  evidence ;  yet  it  is  other- 
wise when  such  connection  does  not  appear  on  the  face 
of  the  writings  themselves ;  for,  to  let  in  parol  evidence 
in  order  to  connect  them  with  one  another,  would  be  to 
let  in  the  very  mischief  which  it  was  the  object  of  the 
framers  of  the  Act  to  avoid,  namely,  the  uncertainty  and 
temptation  to  falsehood  occasioned  by  allowing  the  prool 
of  the  contract  to  depend  on  the  recollection  of  wit- 
nesses :  and,  therefore,  where  a  written  agreement  is  re-  - 
quired  by  the  4th  section  of  the  statute,  it  is  clear  that 
several  writings,  not  bearing  an  obvious  connection  inter 
se  in  sense,  cannot  be  joined  together  by  verbal  evidence 
to  make  up  the  ^agreement.  This  was  one  of  r:i<q^)-| 
the  points  decided  in  the  great  case  of  Boydell 

(s)  12  Cl.  &  Fin.  45. 

99 


90  THE   STATUTE   OF   FRAUDS.  [lECT.  II. 

V.  Drummond  {t),  where  the  plaintiff  proposed  to  pub- 
lish an  edition  of  Shakespeare  with  splendid  engravings, 
and  issued  a  prospectus  stating  the  terms.  A  copy  of 
the  prospectus  lay  in  his  shop,  and  beside  it  lay  a  book 
headed  ^^Shakespeare  Subscribers,  their  Signatures ;"  but 
there  was  nothing  in  the  book  about  the  prospectus,  or 
in  the  prospectus  about  the  book.  The  defendant  had 
signed  the  book,  and,  having  afterwards  refused  to  con- 
tinue taking  in  the  Shakespeare,  the  plaintiff  brought 
an  action  against  him.  Now,  the  Shakespeare  was  not 
to  be  finished  for"  some  years,  and  therefore  the  case  was 
one  of  those  provided  for  by  the  4th  section  of  the 
Statute  of  Frauds,  falling  within  the  words  "  any  agree- 
ment that  is  not  to  be  performed  within  one  year  from 
the  making  thereof."  It  was,  therefore,  necessary  that 
it  should  be  in  writing,  and  that  that  writing  should  be 
^^  signed  by  the  party  to  be  charged,  or  his  agent." 
Now,  the  terms  of  the  agreement  were  in  the  prospectus, 
and  so  far  the  statute  had  been  complied  with  ;  but  the 
sigtiature  unluckily  was  in  the  book:  and  the  Court 
held,  that,  as  the  prospectus  did  not  refer  to  the  book, 
or  the  book  to  it,  the  statute  had  not  been  complied 
with,  and  the  contract  could  not  be  enforced.  "If," 
said  Xe  Blanc,  J.,  "there  had  been  anything  in  that 
book  '"^'which  had  referred  to  the  particular  pro- 
'-  -^  spectus,  that  would  have  been  sufficient ;  if  the 
title  to  the  book  had  been  the  same  with  that  of  the 
prospectus,  it  might  perhaps  have  done:  but,  as  the 
signature  now  stands,  without  reference  of  any  sort  to 
the  prospectus,  there  was  nothing  to  prevent  the  plain- 
tiff from  substituting  any  prospectus,  and  saying  that  it 
was  the  prospectus  exhibited  in  his  shop  at  the  time  to 
which  the  signature  related :  the  case  therefore  falls 
directly  within  this  branch  of  the  Statute  of  Frauds." 

{t)  11  East,  142. 

100 


LECT.  II.]  THE   STATUTE    OF    FRAUDS.  91 

So  too,  where  property  is  sold  by  auction  subject  to 
conditions  of  sale,  an  entry  made  at  the  time  of  the  sale 
in  the  auctioneer's  book  which  contains  either  no  refer- 
ence at  all  to  the  conditions,  or  no  reference  such  as  to 
identify  the  conditions  upon  their  production  as  being 
tlie  conditions  contained  in  the  entry,  is  insufficient  to 
satisfy  the  statute,  though  the  entry  contain  the  names  of 
the  vendor  and  purchaser,  the  subject-matter  of  the  con- 
tract and  the  price  to  be  paid  (u). 

Still,  where  the  contract  is  sought  to  be  made  out 
from  more  than  one  document,  although  parol  evidence 
is  inadmissible  to  connect  the  documents,  and  so  partly 
by  parol  evidence,  partly  by  writing  to  make  out  a  con- 
tract, yet  parol  evidence  is  admissible  to  identify  one 
document  referred  to  in  another  as  the  document  actu- 
ally intended  by  that  ^reference.  This,  indeed,  p-.Q^-,-, 
is  merely  a  particular  application  of  the  doctrine  ■-  "-I 
as  to  latent  ambiguity  (x)  already  referred  to  {y).  To 
use  the  illustration  given  by  Bramivell,  L.  J,,  in  the 
case  just  cited  [z),  "Suppose  that  A.  writes  to  B.,  saying 
that  he  will  give  £1000  for  B.'s  estate,  and  at  the  same 
time  states  the  terms  in  detail,  and  suppose  that  B. 
simply  writes  back  in  return  '  I  accept  your  offer.'  In 
that  case  there  may  be  an  identification  of  the  documents 
by  parol  evidence,  and  it  may  be  shown  that  the  offer 
alluded  to  by  B.  is  that  made  by  A.,  without  infringing 
the  Statute  of  Frauds,  sect.  4,  which  requires  a  note  or 
memorandum  in  writing."  This  illustration  has  been 
applied  in  Cave  v.  Hastings  (a).     There  the  plaintiff 

(«)  Eishton  v.  Whatmore,  8  Ch.  Div.  467  ;  Peirce  v.  Corf,  L.  R.  9  Q.  B.  210 ; 
43  L.  J.  Q.  B.  52. 

(x)  See  per  Thesiger,  L.  J.  in  Long  v.  Millar,  4  C.  P.  D.  450,  45G ;  48  L.  J 
;Q.  B.  etc.)  596,  600. 

(y)  Ante,  p.  *49. 

(z)  4  C.  P.  D.  454;  43  L.  J.  (Q.  B.  etc.)  599. 

(a)  7  Q.  B.  D.  125 ;  50  L.  J.  (Q.  B)  575. 

101 


92  THE   STATUTE    OF    FRAUDS.  [lECT.  II. 

had  signed,  on  the  1st  of  December,  1879,  a  memoran- 
dum agreeing  to  provide  a  Victoria,  horse,  harness,  and 
a  coachman,  to  the  defendant's  satisfaction,  for  one  year, 
from  the  1st  of  January,  1880,  for  £18  10s.  per  month, 
and  occasionally,  in  wet  weather,  the  use  of  a  Brougham ; 
but  this  document  was  not  signed  by  the  defendant. 
The  latter,  in  a  subsequent  letter,  signed  by  him,  to  the 
plaintiff,  referred  to  "  our  arrangement  for  the  hire  of 
your  carriage."  It  was  held  that  parol  evidence  was 
-^  admissible  to  shew  """that  there  could  be  no  other 

L  '  -'  arrangement  than  that  contained  in  the  memo- 
randum to  which  the  defendant  could  have  intended  to 
refer,  and  the  first  document  being  thus  identified  with 
the  reference  in  the  defendant's  letter,  it  was  held  that 
there  was  a  sufficient  memorandum  in  writing  to  satisfy 
the  4th  section  of  the  Statute  of  Frauds. 

There  is  a  third  point  common  to  all  the  five  contracts 
mentioned  in  the  4th  section ;  it  is  with  regard  to  the 
signature.  The  words  are,  you  will  recollect,  ^^  signed 
by  the  party  to  he  charged  therewith,  or  some  other  per- 
son thereunto  by  him  lawfully  authorized."  The  signa- 
ture, it  is  obvious,  is  most  regularly  and  properly  placed 
at  the  foot  or  end  of  the  instrument  signed  :  but  it  is 
decided  in  many  cases,  that  although  the  signature  be  in 
the  beginning  or  middle  of  the  instrument,  it  is  as  bind- 
ing as  if  at  the  foot ;  although,  if  not  signed  regularly 
at  the  foot,  there  is  always  a  question  whether  the  party 
meant  to  be  bound  by  it  as  it  stood,  or  whether  it  was 
left  so  unsigned  because  he  refused  to  complete  it.  But 
when  it  is  ascertained  that  he  meant  to  be  bound  by  it 
as  a  complete  contract,  the  statute  is  satisfied,  there  be- 
ing a  note  in  writing  showing  the  terms  of  the  contract, 
and  signed  by  him.  Therefore,  where  in  the  case  of 
the  sale  of  a  quantity  of  cotton  yarn,  a  bill  of  parcels 
was  sent  by  the  seller  to  the  purchaser,  headed  : — "  Lou- 
102 


LECT.  II.]  THE   STATUTE   OF   FRAUDS.  93 

don,  24tli  Oct.,  1812. — Messrs.  John  Schneider  &  Co., 
bought  of  Thomas  Norris  *&  Co.,  agents,  cotton  picq^-i 
yarn  and  piece  goods.  No.  3,  Freeman's  Court, 
Cornhill."  Following  this  was  a  list  of  the  articles  sold, 
the  particulars,  quantities,  and  prices.  It  was  held,  in 
an  action  for  not  delivering  the  yarn,  to  contain  a  suffi- 
cient memorandum  to  satisfy  the  requirement  of  the 
statute  as  to  the  signature  of  the  party  to  be  charged  {b). 
In  this  case,  the  whole  of  the  heading  of  the  bill 
of  parcels  was  printed,  except  the  words  "  Messrs.  John 
Schneider  &  Co."  But  as  it  was  then  given  out  to  the 
other  contracting  party  by  the  party  to  be  charged, 
recognizing  the  printed  name  as  much  as  if  he  had  sub- 
scribed his  mark  to  it,  he  had  recognized  and  avowed  it 
as  his  signature  (c).  For  the  same  reason,  where 
the  plaintiff's  traveller  called  on  the  defendant  with 
samples  of  hops,  and  agreed  with  him  for  sale  of  them, 
and  the  defendant  thereupon  wrote  in  a  book  of  his  own, 
of  which  he  retained  possession,  as  follows: — "Leeds, 
19th  Oct.,  1836.— Sold  John  Dodgson,  27  pockets  Play- 
stead,  1836,  Sussex,  at  1035.,  the  bulk  to  answer  the 
sample ;  4  pockets  Selmes  Berkleys  at  95s.,  samples  and 
invoice  to  be  sent  per  Bockingham  coach, — payment  in 
banker's  in  two  months,"  which  was  signed,  at  the  de- 
fendant's request,  by  the  plaintiff's  traveller  thus : — 
"  Signed,  for  Johnson  &  '^'Co.,  D.  Morse,"  this  p^Q_-, 
was  deemed  a  sufficient  signature  of  the  contract  ^  -' 
to  bind  the  defendant;  for  the  defendant's  name  was 
contained  in  it  in  his  own  handwriting,  and  his  having 
required  plaintiff's  agent  to  sign  it  showed  that  he  meant 
it  to  be  a  memorandum  of  contract  between  the  par- 
ties (d).     But,  of  course,  where  it  appears  that,  notwith- 

(6)  Schneider  v.  Norris,  2  M.  &  S.  286. 

(c)  See  Saunderson  v.  Jackson,  2  Bos.  &  P.  238. 

(d)  Johnson  v.  Dodgson,  2  M.  &  W.  653.     See  Lobb  v.  Stanley,  5  Q.  B.  (48 
E.  C.  L.  E.)  574;  Lewis  v.  Lord  Kensington,  2  C.  B.  (52  E.  C.  L.  R.)  463. 

103 


95  THE   STATUTE   OF   FRAUDS.  [lECT.  fl. 

standing  tLe  insertion  of  the  parties'  names  in  the  in- 
strument, it  was  intended  that  their  signatures  should 
be  affixed  in  the  proper  place,  such  an  instrument  would 
not  be  a  compliance  with  the  statute,  as  it  could  not  be 
considered  as  signed  by  them.  Therefore,  where  ar- 
ticles of  agreement  contained  the  terms  of  a  contract 
which  was  not  to  be  performed  within  a  year,  purport- 
ing to  be  made  between  certain  persons  whose  names 
were  stated  at  the  commencement  of  the  articles,  and 
who  were  described  as  the  contracting  parties,  and  con- 
cluded with  the  words,  *'As  witness  our  hands,"  without 
being  followed  by  any  name  or  signature,  they  were 
held  not  to  be  sufficiently  signed  within  the  Statute  of 
Frauds  [e).  And  as  a  signature  in  print  is  good  (/),  so 
is  a  signature  in  pencil.  This,  jndeed,  was  held  in  a 
case  of  a  pencil  endorsement  *of  a  promissory 
'-  -'  note,  but  it  seems  equally  applicable  to  the  signa- 
ture required  by  the  Statute  of  Frauds  (^).  There  is 
also  little  or  no  doubt  that  a  party  may  sign,  within  this 
statute,  by  stamping  his  signature  instead  of  writing 
it  (h) .  It  seems,  too,  that  a  telegram  containing,  as  usual, 
the  names  of  the  sender  and  receiver,  would  be  a  suffi- 
cient writing  signed,  within  the  statute,  to  bind  the 
sender  {iy  The  signature  is  to  be  that  of  the  party  to 
be  charged ;  and,  therefore,  though,  as  I  have  pointed 

(e)  Hubert  v.  Treherne,  3  M.  &  G.  (42  E.  C.  L.  K.)  743.  See  also  Caton  v. 
Caton,  L.  E.  2  H.  L.  127 ;  36  L.  J.  (Ch.)  886. 

(/ )  Schneider  v.  Norris,  supra. 

(g)  Geary  v.  Physic,  5  B.  &  C.  (11  E.  C.  L.  E.)  234. 

{h)  Bennett  v.  Brumfitt,  L.  E.  3  C.  P.  28 ;  37  L.  J.  (C.  P.)  25. 

(i)  Godwin  v.  Francis,  39  L.  J.  (C.  P.)  121 ;  L.  E.  5  C.  P.  295.  See  also 
Williams  v.  Prisco,  22  Ch.  Div.  441. 

*  Among  the  American  cases  are  Kinghorne  v.  Montreal  Tel.  Co.,  18  U.  C.  Q. 
B.  66;  Durkeet;.  Vermont  Central  E.  Co.,  29  Vt.  140;  Dunning  v.  Eoberts,  35 
Barb.  468 ;  Beach  v.  E.  E.,  37  N.  Y.  457.  See  4  Am.  L.  Eeg.  N.  S.  207.  In 
Indiana  (Eev.  Stat.  1881,  ?  4180)  there  is  a  statutory  provision  that  contracts 
by  telegraph  shall  be  considered  contracts  in  writing. 

104 


LECT.  II.]  THE   STATUTE   OF   FRAUDS.  96 

out  to  you,  botli  sides  of  the  agreement  must  appear  in 
the  writing,  the  consideration  as  well  as  the  promise,  it 
is  not  necessary  that  it  should  be  signed  by  both  the 
parties ;  it  is  sufficient  if  the  party  suing  on  it  is  able  to 
produce  a  writing  signed  by  the  party  whom  he  is  seek- 
ing to  charge  {k) }  And  such  a  writing  signed  is  suffi- 
cient to  satisfy  the  4th  section,  though  it  be  only  a  pro- 
posal accepted  by  parol  by  the  party  to  whom  it  is 
made  il).  The  person,  however,  who  seeks  to  enforce 
the  agreement  has  not  the  other  altogether  at  his  mercy, 
but  must  either  do,  or  be  ready  to  *do,  his  own  pj.Q„-| 
part  of  the  agreement,  before  he  can  seek  j^er-  ^  -• 
formance  on  the  part  of  the  person  who  has  signed  (m). 
But  although  the  written  memorandum  may  be  made 
and  signed  subsequently  to  the  making  of  the  contract  {n), 
yet  it  must  exist  before  an  action  is  brought  upon  it  (o). 

{k)  Laythoarp  v.  Bryant,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  735. 

(0  Eeuss  V.  Picksley,  L.  E.  1  Ex.  342;  35  L.  J.  (Ex.)  218,  Ex.  Ch.,  con- 
firming Warner  v.  Willington,  3  Drew.  623,  25  L.  J.  Ch.  662 ;  Smith  v.  Neale, 
2  C.  B.  (N.  S.)  (89  E.  C.  L.  R.)  67  ;  26  L.  J.  (C.  P.)  143. 

(m)  Eeuss  V.  Picksley,  L.  E.  1  Ex.  342,  353 ;  35  L.  J.  (Ex.)  218,  Ex.  Ch. 

(n)  Leroux  v.  Brown,  22  L.  J.  (C.  P.)  1 ;  12  C.  B.  (74  E.  C.  L.  E.)  801  ; 
Jones  V.  Victoria  Graving  Dock  Co.,  2  Q.  B.  D.  313,  46  L.  J.  (Q.  B.,  etc.)  212. 
In  the  latter  case,  where  the  minute  hook  of  a  company  contained  a  resolution 
admitting  a  contract,  the  signature  of  the  chairman,  affixed  at  the  next  meeting 
to  attest  the  accuracy  of  the  minute,  was  held  a  sufficient  signature  of  tlie  com- 
pany's agent  to  satisfy  tlie  4th  sect. 

(o)  Bill  V.  Bament,  9  M.  &  W.  36,  qiwsre — see  Fricker  v.  Tomlinson,  1  M.  & 
G.  (39  E.  C.  L.  E.)  772. 

^  As  it  was  in  Penniman  v.  Hartshorn,  13  Mass.  87  ;  Hawkins  v.  Chace,  19 
Pick.  502 ;  Ballard  v.  Walker,  3  Johns.  Cas.  60 ;  Clason  v.  Bailey,  14  Johns. 
487  ;  Douglass  v.  Spears,  2  N.  &  McC.  207  ;  Anderson  v.  Harold,  10  Ohio,  399 ; 
Smith  V.  Smith,  8  Blackf.  208.  By  the  New  York  Eevised  Statutes  the  memo- 
randum must  be  subscribed;  and  it  is  held,  therefore,  that  a  signature  elsewhere 
than  at  the  bottom  or  end  of  the  writing  is  insufficient  to  satisfy  the  statute  as 
thus  varied:  Davis  v.  Shields,  26  Wend.  341.  [See  Mutual  Ins.  Co.  v.  Eoss, 
10  Abb.  Pr.  260 ;  Hubbell  v.  Livingtone,  1  Code  Eep.  (N.  Y.)  63.]— r. 

Signature  by  initials  is  valid  and  parol  evidence  is  admissible  to  apply 
them :  Sanborn  v.  Flagler,  9  Allen,  474.  A  telegram  accepting  an  offer  and 
completing  a  contract  is  sufficient  to  take  a  case  out  of  the  statute :  Trevor  v 
Wood,  36  N.  Y.  307.     [See  Eeed,  Statute  of  Frauds,  Chap,  xvi.]— s. 

105 


97  THE    STATUTE   OF    FRAUDS.  [lECT.  II. 

The  last  point  I  shall  mention  common  to  all  the  con- 
tracts falling  within  this  section  regards  the  consequence 
of  non-compliance  with  its  provisions.  This  conse- 
quence is,  not  that  the  unwritten  contract  shall  be  void, 
but  that  no  action  shall  be  brought  to  charge  the  con- 
tracting party  by  reason  of  it  {p).  And  cases  may 
occur  in  which  the  contract  may  be  made  available 
without  bringing  an  action  on  it ;  and  in  which,  conse- 
p.^Qo-i  quently,  it  may,  ^though  unwritten,  be  of  some 
avail.  Thus,  for  instance,  if  money  have  been 
paid  in  pursuance  of  it,  that  payment  is  a  good  one  for 
all  purposes :  thus,  where  £100  was  paid  by  the  incom- 
ing tenant  to  the  outgoing  one,  partly  for  himself,  and 
partly  for  the  landlady,  in  pursuance  of  a  verbal  agree- 
ment, and  the  outgoing  tenant  refused  to  pay  the  land- 
lady her  share,  saying  that  there  was  no  writing,  and 
that  words  were  but  wind ;  on  the  landlady  bring- 
ing her  action.  Lord  Ellenhovough  nonsuited  her,  on 
the  ground  that  the  agreement,  being  for  an  interest  in 
land,  ought  to  have  been  in  writing ;  but  the  Court  of 
King's  Bench  set  aside  the  nonsuit,  with  Lord  Ellen- 
borough^ s  own  concurrence  {q)}  And  where,  to  an 
action  for  goods  sold,  the  defendant  pleaded  an  agree- 
ment that,  in  consideration  of  the  defendant  giving  up 
possession  of  certain  premises  and  stock-in-trade,  the 
plaintiff  should  pay  him  £100,  and  also  discharge  him 
from  all  debts  and  causes  of  action,  which  premises  had 
been  given  up  and  the  £100  paid ;  it  was  decided  that 

( p)  Per  Bosanquet,  J.,  in  Lay thoarp  v.  Bryant,  supra.  See  Britain  v.  Kos- 
eiter,  48  L.  J.  (Q.  B.)  362  ;  11  Q.  B.  D.  123;  Maddison  v.  Alderson,  per  Lord 
Blackburn,  8  App.  Cas.  488;  52  L.  J.  (Q.  B.)  749;  In  re  Hilliard,  2  D.  &  L. 
919;  Sweet  v.  Lee,  3  M.  &  G.  (42  E.  C.  L.  E.)  452;  Crosby  v.  Wadsworth,  6 
East,  611 ;  Carrington  v.  Eoots,  2  M.  &  W.  248. 

iq)  Griffith  V.  Young,  12  East,  213.  See  Cocking  t;.  Ward,  1  C.  B.  (50  E.  C. 
L.  E.)  858 ;  Pulbiook  v.  Lawes,  1  Q.  B.  D.  284;  45  L.  J.  (Q.  B.)  178. 

'  To  the  same  effect  is  Philbrook  v.  Belknap,  6  Vt.  383.— B. 
106 


>/•  ^ 


7/^ 

LECT.  II.]  THE   STATUTE   OF    FRAUDS.  98 


'■'^  'S8 


this  accord  and  satisfaction  might  be  proved  by  parol ; 
although,  if  it  had  been  required  to  enfore  the  delivery 
up  of  possession  of  the  premises,  a  writing  might  have 
been  necessary  (r). 

Although  these  lectures  only  profess  to  deal  with 
^contracts  under  their  Common  Law  aspect,  and  r^qn-i 
to  treat  of  such  subjects  as  have  been,  previously 
to  the  Judicature  Acts  of  1873  and  1875,  enforceable 
by  action  in  the  Courts  of  Common  Law,  it  should  be 
briefly  noticed  here  that  the  Courts  of  Equity  would 
enforce  the  complete  performance  of  an  agreement 
which  came  within  the  4th  section  of  the  Statute  of 
Frauds,  even  where  the  absence  of  a  writing  sufficient 
to  satisfy  the  statute  would  have  been  an  insuperable 
obstacle  to  success  at  Law,  provided  that  the  party  who 
sought  to  enforce  the  agreement  had  himself  partly 
performed  his  share  of  it.  In  other  words,  in  Equity 
])art  performance  took  the  case  out  of  the  statute.  This 
doctrine,  indeed,  had  always  been  confined  in  Equity 
to  questions  relating  to  land  (s) ,  but  when  the  provisions 
of  t]ie  Judicature  Act  of  1873  {t)  came  into  force,  which 
enable  the  High  Court  and  Court  of  Appeal  to  recog- 
nize all  equitable  duties  and  liabilities  apjDcaring  in  the 
course  of  any  matter  before  them,  and  to  grant  all 
remedies  in  respect  of  any  legal  or  equitable  claim ;  and 
which  provide,  too,  that  where  "  there  is  any  conflict 
between  the  rules  of  Equity  and  the  rules  of  Common 
Law  with  reference  to  the  same  matter,  the  rules  of 
Equity  shall  prevail ;"  it  was  thought  possible  that  the 
equitable  doctrine  of  part  performance  might  r-jjt/v)"! 
^become  aj^plicable  to  contracts  orhe]f  than  those  .^^z  'i', 
to  which  Courts  of  Equity  had  been  in  the  h?bit   cf 

(r)  Lavery  v.  Turley,  30  L.  J.  (Ex.)  49. 

(s)  Britain  v.  Rossiter,  48  L.  J.  (Q.  B.)  364,  366 ;  11  Q.  B.  D.  129,  130. 

(0  36  &  37  Vict.  c.  66,  s.  24,  sub-ss.  4,  7,  and  s.  25,  suh-s.  11. 

107 


100  THE   STATUTE   OF   FRAUDS.  [lECT.  II. 

applying  it.     Accordingly,  in  Britain  v.  Kossiter  {u), 
it  was  souglit   to   api^ly   it  to   a   contract   of  service. 
There  the  plaintiff  and  defendant  had  entered  into  an 
agreement  in  writing,  but  not  signed,  for  the  plaintiff 
to  serve  for  a  year  as  clerk  and  accountant  to  the  de- 
fendant.    The  agreement  was  concluded  on  Saturday, 
the  21st   of  April,  1877 ;  the  plaintiff's  service   began 
on  the  Monday  following.     It  was,  therefore,  a  contract 
not  to  be  performed  within  a  year,  and  a  writing,  duly 
signed,  became  necessary  in  the  event  of  an  action  being 
brought   on  the  contract.     The  plaintiff  served  some 
months,  and  was  then  dismissed  at   a  month's  notice, 
and  subsequently  brought  his  action.     The  Court  of 
Appeal,  before  whom  it  was  contended  that  the  plain- 
tiff was  entitled  to  recover,  on  the  ground  of  part  per- 
formance taking  the  case  out  of  the  statute,  refused  to 
extend  the  application  of  the  doctrine  to  any  cases  in 
which  Equity  had  not  applied  it,  holding  that  to  apply 
it  to  a  contract  of  service  which  could  not  have  come 
within  the  jurisdiction  of  the  Court  of  Chancery  would 
be  to  construe  the  Judicature  Acts  as  conferring  new 
rights,  whereas  in  truth  they  only  change   the   pro- 
cedure ;  and  the  Court  held  that  the  plaintiff  could  not 
p^^^^-i    maintain  the  action.     By  this  decision,  *there- 
fore,  the  law  seems  now  to  be  settled  that  the 
doctrine   of  part   performance   only   applies   to   cases 
relating  to  land.     It  is  not  intended  here  to  go  further 
into  the  subject  of  part  performance,  or  to   consider 
what  acts  of  part  performance  have  been  held  sufficient 
to  take,  the  case  out  of  the  statute.     The  student  who 
desires  'furthet/iiifdiim^tion  on   the  subject  is  recom- 
meiided  to  peruse  CLarefully  the  judgment  in  the  case  of 
Maddison   ?;.   A'ltesofi    (x),   recently   decided   in   the 

(u)  48  L.  J.  (Q.  B.)  362 ;  11  Q.  B.  D.  123. 

(x)  8  App.  Cas.  467 ;  62  L.  J.  (Q.  B.)  737  (H,  L.),  affirming  Alderson  v. 
108 


LECT.  II.]  THE   STATUTE   OF    FEAUDS.  101 

House  of  Lords ;  and  is  also  referred  to  the  case  of  Les- 
ter V.  Foxcroffc,  and  the  notes  thereto  in  White  and 
Tudor's  "  Leading  Cases  in  Equity  (?/)." 

I  have  now  pointed  out  to  you  the  matters  in  which 
all  simple  contracts  agree,  and  the  practical  differences 
which  exist  between  the  effect  of  written  and  that  of 
verbal  contracts,  although  in  theory  both  sorts  fall 
within  the  denomination  Simple  Contracts.  I  have  de- 
scribed the  consequences  which  follow  from  the  rules 
of  evidence  upon  the  reduction  of  any  contract  what- 
ever into  writing,  and  I  have  begun  to  describe  those 
consequences  which  follow  from  the  provisions  of  the 
Statute  of  Frauds,  in  the  cases  to  wliich  it  is  applicable. 
But  as  it  is  imjDOSsible  to  finish  the  consideration  of 
that  statute  this  evening,  I  shall  proceed  with  it  in  the 
next  Lecture. 

Maddison,  7  Q.  B.  D.  174  (C.  A.),  50  L.  J.  (Q.  B.)  466;  and  reversing  S.  C.  5 
Ex.  Div.  293;  49  L.  J.  (Q.  B.)  801. 
(y)  White  &  Tu.  vol.  i.  p.  828,  5th  ed. 


109 


[*102]  LECTUEE  III. 

THE   FOURTH    SECTIONS'    OF   THE   STATUTE    OF    FRAUDS. 

PROMISES    BY   EXECUTORS    AND    ADMINISTRATORS. 

GUARA  NTIES. — MARRIAGE    CONTRACTS. CONTRACTS 

FOR    THE   SALE   OF  LAND. AGREEMENTS  NOT  TO  BE 

PERFORMED    IN    A    YEAR. 

I  HAVE  now  touclied  on  the  points  which  [with  one 
exception  made  by  the  provisions  of  a  recent  statute  in 
the  case  of  guaranties]  equally  apply  to  each  of  those 
five  species  of  contracts  to  which  the  4th  section  of  the 
Statute  of  Frauds  relates ;  those,  namely,  which  regard 
the  appearance  in  the  writing  of  the  consideration  and 
other  terms  as  well  as  the  promise,  the  signatvre  which 
the  statute  requires,  and  the  consequences  of  not  reduc- 
ing into  writing  contracts  which  the  statute  requires 
should  be  so  evidenced.  It  remains,  before  terminating 
the  consideration  of  that  section  of  the  Act,  to  consider 
each  of  the  five  particular  species  of  contracts  to  which 
it  applies. 

The  first  is — any  special  promise  by  an  executor  or 
administrator  to  answer  damages  out  of  his  own  estate. 

The  principal  case  on  this  subject  is  Eann  v. 
^  '''Hu2;hes  ia),  which  went  up  to  the  House  of 
'-  ^  Lords.  The  point  decided  in  that  case  is,  that 
the  Statute  of  Frauds  in  no  manner  affected  the  valid- 
ity of  such  promises,  or  rendered  them  enforceable  in 
any  case  in  which  at  Common  Law  they  would  not 
have  been  so ;  but  merely  required  that  they  should  be 

(a)  7  T.  R.  350,  n. ;  7  Bro.  Pari.  C.  550.  Forth  v.  Stanton,  1  Wms.  Saund. 
p.  2U,  n.  2. 

110 


LEcrr.  in.]         the  statute  of  featjds.  103 

reduced  into  writing  leaving  the  written  contract  to  be 
construed  in  such  a  manner  as  a  parol  contract  would 
have  been,  had  there  been  no  writing.  The  opinion  of 
the  judges  was  delivered  to  the  House  of  Lords  by  L. 
C.  Baron  Skynner,  and  is  extremely  instructive.  Being 
very  short,  it  is  here  inserted  : — "  It  is  undoubtedly  true 
that  every  man  is  by  the  law  of  nature  bound  to  fulfil 
his  engagements.  It  is  equally  true  that  the  law  of  this 
country  supplies  no  means  nor  affords  any  remedy  to 
compel  the  2:>erformance  of  any  agreement  made  without 
sufficient  consideration.  Such  agreement  is  nudum 
pactum  ex  quo  non  oritur  actio  ;  and  whatever  may  be 
the  sense  of  this  maxim  in  the  civil  law,  it  is  in  the 
last-mentioned  sense  only  that  it  is  to  be  understood  in 
our  law.  The  declaration  states  that  the  defendant,  be- 
ing indebted  as  administratrix,  promised  to  pay  when 
requested,  and  the  judgment  is  against  the  defendant 
generally.  The  being  indebted  is  of  itself  a  sufficient 
consideration  to  ground  a  promise,  but  *the 
promise  must  be  co-extensive  with  the  considera-  ^  -' 
tion,  unless  some  particular  consideration  of  fact  can  be 
found  here  to  warrant  the  extension  of  it  asrainst  the 
defendant  in  her  own  capacity.  If  a  person  indebted 
in  one  right,  in  consideration  of  forbearance  for  a  par- 
ticular time,  promise  to  pay  in  another  right,  this  con- 
venience will  be  a  sufficient  consideration  to  warrant  an 
action  against  him  or  her  in  the  latter  right ;  but  here 
no  sufficient  consideration  occurs  to  support  this  demand 
against  her  in  her  personal  capacity,  for  she  derives  no 
advantage  or  convenience  from  the  promise  here  made. 
For  if  I  promise  generally  to  pay  upon  request  what  I 
was  liable  to  pay  upon  request  in  another  right,  I  de- 
rive no  advantage  or  convenience  from  this  promise, 
and  therefore  there  is  not  sufficient  consideration  for  it. 
But  it  is  said  that  if  this  promise  is  in  writing,  that 

111 


104  THE   STATUTE   OF   FKAUDS.  [lECT.  III. 

takes  away  tlie  necessity  of  a  consideration,  and  obviates 
the  objection  of  nudum  pactum,  for  that  cannot  be  where 
the  promise  is  put  in  writing :  and  that  after  verdict,  if 
it  were  necessary  to  support  the  promise  that  it  should 
be  put  in  writing,  it  will  after  verdict  be  presumed  that 
it  was  in  writing :  and  this  last  is  certainly  true ;  but 
that  there  cannot  be  nudum  pactum  in  writing,  what- 
ever may  be  the  rule  of  the  civil  law,  there  is  certainly 
none  such  in  the  law  of  England.  All  contracts  are  by 
the  laws  of  England  distinguished  into  agreements  by 
specialty  and  agreements  by  parol ;  nor  is  there  any 
such  "^'third  class,  as  some  of  the  counsel  have 
L  -I  endeavoured  to  maintain,  as  contracts  in  writing. 
If  they  be  merely  written  and  not  specialties,  they  are 
parol,  and  a  consideration  must  be  j^roved.  But  it  is 
said  that  the  Statute  of  Frauds  has  taken  away  the  ne- 
cessity of  any  consideration  in  this  case ;  the  Statute  of 
Frauds  was  made  for  the  relief  of  personal  rej)resenta- 
tives  and  others,  and  did  not  intend  to  charge  them 
further  than  by  common  law  they  were  chargeable." 
His  Lordship  here  read  those  sections  of  that  statute 
which  relate  to  the  present  subject.  He  observed,  "  that 
the  words  were  merely  negative,  and  that  executors  and  ■ 
administrators  should  not  be  liable  out  of  their  own  es- 
tates, unless  the  agreement  upon  which  the  action  was 
brought,  or  some  memorandum  thereof,  was  in  writing 
and  signed  by  the  party.  But  this  does  not  prove  that 
the  agreement  was  still  not  liable  to  be  tried  and 
judged  of  as  all  other  agreements  merely  in  writing  are 
by  the  common  law,  and  does  not  prove  the  converse  of 
the  proposition,  that  when  in  writing  the  party  must  be 
at  all  events  liable."  He  said  that  "  all  his  brothers 
concurred  with  him  that  in  this  case  there  was  not  a 
sufficient  consideration  to  support  this  demand  as  a  per- 
sonal demand  against  the  defendant,  and  that  its  being 
112 


LECT.  III.]  THE   STATUTE   OF    FRAUDS.  105 

now  supposed  to  have  been  in  writing  makes  no  differ- 


ence."^ 


The  next  species  of  promise  mentioned  in  the  4th 
section  is,  any  special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarTiage  of  another  person. 

*This  includes  all  those  promises  which  we  or-  ^ 

dinarily  denominate  guaranties,  and  has  given    '-         ^ 
rise  to  a  very  great  deal  of  discussion. 

In  the  first  place,  it  has  been  decided,  that  the  sort 
of  promise  which  the  statute  means,  and  which  must  be 
reduced  into  writing,  is  a  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  person,  for 
which  that  other  person  himself  continues  liable.  Thus, 
if  A.  go  to  a  shop,  and  say,  "  Let  B.  have  what  goods 
he  pleases  to  order,  and  if  he  do  not  pay  you  /  will," 
that  is  a  promise  to  answer  for  a  debt  of  B.  for  which 
B.  is  himself  also  liable :  and  if  it  be  sought  to  enforce 
it,  it  must  be  shown  to  have  been  reduced  into  writing : 
but  if  A.  had  said,  "Let  B.  have  goods  on  my  account," 
or,  "  Let  B.  have  goods  and  charge  me  with  them :"  in 
these  cases  no  writing  would  be  required,  because  B. 
never  would  be  liable  at  all,  the  goods  being  supplied  on 
A.'s  credit  and  responsibility,  though  handed  by  his 
directions  to  B.  {b).^ 

(b)  Birkmyr  v.  Darnell,  Salk.  27  ;  and  the  notes  to  Forth  v.  Stanton,  1  Wms. 
Saund,  211  b,  211  c. 

»  Sidle  V.  Anderson,  45  Pa.  St.  464.— s. 

'  The  party  for  whom  the  promise  is  made  must  be  liable  to  the  party  to 
whom  it  is  made:  Boykin  v.  Dohlonde,  37  Ala.  577;  Downey  v.  Hincliman, 
25  Ind.  453.  A  request  to  one  to  work  for  the  benefit  of  a  third  party  and  a 
promise  to  pay,  form  an  original,  not  a  collateral  promise :  Brown  v.  George, 
17  N.  H.  128,-  Dorwin  i\  Smith,  35  Vt.  69;  Smith  v.  Eogers,  lb.  140;  Wil- 
liams V.  Little,  lb.  323.  A.'s  promise  to  pay  a  debt  due  from  C.  need  not  be 
in  writing  if  it  is  made  in  consideration  of  C.'s  release  therefrom  :  Day  v.  Cloe, 
4  Bush,  563  ;  Packer  v.  Benton,  35  Conn.  343;  ^ale  v.  Edgerton,  14  Minn.  194; 
Harris  v.  Young,  4  Ga.  65 ;  Uhler  v.  Farmers'  Bank,  64  Pa.  St.  406.  The 
statute  does  not  apply  where  the  promise  is  to  pay  his  own  debt,  though  it 
may  be  incidentally  a  guarantee  of  the  obligation  of  another :    Malone  v. 

8  "  113 


106  THE   STATUTE   OF   FRAUDS.  [lECT.  III. 

Upon  these  grounds  where  there  were  three  executors 
and  trustees,  and  A.  Orrell,  one  of  them,  renounced  to 
enable  himself  to  purchase  some  of  the  testator's  prop- 
erty, which,  while  trustee,  he  could  not  do  without  leave 
of  the  Court,  and  afterwards  purchased  the  property, 
and  losses  were  incurred  by  the  trustees,  and  a  claim 
for  them  was  raised  in  Equity  by  the  legatees,  where- 
upon *Orrell,  by  his  solicitor,  wrote   to   them 
•-        -I    agreeing  to  pay  £3000  in  satisfaction  of  these 
losses ;  the  Court  of  Chancery  held  that  this  letter  was 
not  within  the  Statute  of  Frauds  as  a  promise  merely 
to  satisfy  the  debt  of  another,  but  was  an  undertaking 
to  pay  the  debt  which  it  was  insisted,  rightly  or  wrongly, 
that  Orrell  was  liable  for  (c). 

For  this  reason,  where  the  plaintiff  had  issued  execu- 
tion against  Lloyd  for  debt,  and  Lloyd,  with  the  plain- 
tiff's consent,  conveyed  all  his  property  to  defendant,  who 
thereupon  undertook  to  pay  the  plaintiff  the  debt  due  from 
Lloyd  upon  the  plaintiff's  withdrawing  the  execution, 
and  giving  up  his  claim  on  Lloyd ;  the  defendant's  un- 
dertaking was  held  not  to  be  a  promise  to  answer  for 
another's  debt  for  which  that  other  remained  liable  {d). 
But  where  Buxton  had  sued  the  defendant  in  Chan- 
cery, and  had  retained   plaintiff  in   that  suit   as  his 
solicitor,  and  costs  had  been  incurred  to  the  plaintiff, 
and  it  was  agreed  by  the  three  that  the  suit  should  be 
discontinued,  and  that  the  defendant  should  pay  the 
plaintiff  these  costs,  it  was  held  that  since  Buxton's  debt 
to  the  plaintiff  remained,  he  being  still  liable  to  pay 
plaintiff's  costs,  the  defendant's  promise  was  to  pay  the 

(c)  Orrell  v.  Coppock,  26  L.  J.  (Ch.)  269;  Adams  v.  Dansey,  6  Bing.  (19  E. 
C.  L.  E.)  506 ;  Batson  v.  King,  28  L.  J.  (Ex.)  327. 

{(1)  Bird  V.  Gammon,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  883. 

Keener,  44  Pa.  St.  107 ;  Stoudt  v.  Hine,  45  lb.  30 ;  Besshears  v.  Eowe,  46  Mo. 
501 ;  Chamberlin  v.  Ingalls,  38  Iowa,  300 ;  Blair  Land  Co.  v.  Walker,  39  lb. 
406;  Lester  v.  Bowman,  lb.  611. — s. 

114 


LECT.  III.]  GUARANTIES.  107 

debt  of  another,  *and  could  not  be  sued  upon,  p^.^^n-i 
not  being  in  writing  (e).  In  another  instance,  ^  -" 
the  plaintiff  became  bail  for  one  Hadley,  at  the  defend- 
ant's request,  and  upon  his  promise  to  indemnify  the 
plaintiff  from  all  damages  and  expenses  which  he  should 
sustain  by  reason  of  his  so  becoming  bail ;  and  the 
Court  clearly  held  this  was  a  promise  to  answer  for  the 
default  of  another,  and  was  not  the  less  so  because 
it  was  in  the  form  of  a  promise  to  indemnify  (/).  In 
another  case  the  plaintiff  contracted  to  supply  A.  with 
iron  plates,  and  delivered  a  part  of  them,  but  refused  to 
deliver  the  rest  unless  he  was  paid  in  cash.  The  de- 
fendant, who  had  an  interest  in  the  contract,  thereupon 
agreed  that  if  the  plaintiff  w^ould  deliver  the  remainder 
he  would  cash  A.'s  acceptances  for  the  goods  already 
and  tliereafter  to  be  delivered,  and  protect  the  plaintiff 
from  the  bills  when  due.  The  defendant  was  to  receive 
3  per  cent,  on  the  amount  of  the  bills.  It  was  held 
that  a  contract  to  give  a  guaranty  is  required  to  be  in 
writing  as  much  as  a  guaranty  itself:  that  here  there 
was  substantially  a  contract  that  if  A.,  the  buyer  of  the 
goods,  did  not  pay  for  them  when  the  acceptance  be- 
came due,  the  defendant  would  indemnify  the  plaintiff 
against  the  buyer's  default,  which  was  an  engagement 
to  answer  for  the  debt  *or  default  of  another,  and 
not  being  in  w^riting  could  not  be  enforced  [g)- 

Goodman  v.  Chase  (A)  presents  rather  a  singular 
instance  of  the  application  of  the  rule  of  construction 
of  which  I  have  been  speaking.  In  that  case,  a  debtor 
had  been  taken  in  execution,  and  Chase,  in  consideration 

(e)  Tomlinson  v.  Gell,  6  A.  &  E.  (33  E.  C.  L.  R.)  564. 

(/)  Green  v.  Cresswell,  10  A.  &  E.  (37  E.  C.  L.  E.)  453.  See  Cripps  v. 
Hartnoll,  32  L.  J.  (Q.  B.)  381,  Ex.  Ch. 

(<7)  Mallett  v  Bateman,  16  C  B.  (N.  S.)  (Ill  E.  C.  L.  R.)  530;  33  L.  J.  {(\ 
P.)  243 ;  S.  C.  in  Ex.  Ch.,  L.  R.  1  C.  P.  163 ;  35  L.  J.  (C.  P.)  40. 

{h)  1  B.  &  Aid.  297 ;  Butcher  v.  Steuart,  11  M.  &  W.  857. 

115 


109  THE   STATUTE   OF   FRAUDS.  [lECT,  III. 

that  the  creditor  would  discharge  him  out  of  custody, 
promised  to  pay  his  debt ;  when  the  debtor  was  accord- 
ingly discharged.  It  was  held,  that  this  promise  need 
not  be  in  writing ;  for  that,  by  discharging  the  debtor 
out  of  execution,  the  debt  was  gone ;  it  having  been,  as 
you  are  probably  aware,  before  the  coming  into  opera- 
tion of  Stat.  32  &  33  Vict.  c.  G2  (The  Debtor's  Act, 
1869),  ss.  4,  5,  a  rule  of  law  that  if  a  debtor  were  once 
taken  in  execution  and  discharged  by  his  creditor's 
consent,  that  operated  as  a  satisfaction  of  the  debt  ;^  and 
therefore  that,  the  debtor  having  ceased  to  be  liable,  the 
promise  to  pay  the  amount  was  not  a  promise  to  pay 
any  sum  for  which  another  person  was  responsible,  and 
therefore  did  not  require  to  be  reduced  into  Avriting. 
If  what  was  originally  the  debt  of  another  has  been 
made  by  the  defendant  his  own  debt,  it  cannot  after- 
wards, as  between  the  creditor  and  himself,  be  con- 
sidered the  debt  of  another  {i). 

r*l  1 01        *I^ut  take  the  case  where  one  makes  a  promise 

to  be  answerable  for  the  debt   of  another,  and 

that    other   never   becomes   legally    indebted    to    the 

promisee.     Is  that  within  this  branch  of  the  4th  sect. 

(i)  Fitzgerald  v.  Dressier,  29  L.  J.  (C.  P.)  113 ;  7  C.  B.  (N.  S.)  (97  E.  C.  L. 
K.)  374. 

^  Sharpe  v.  Speckenagle,  3  S.  &  R.  463  ;  Paletliorpe  v.  Lesher,  2  Rawle,  274 ; 
Snevily  V.  Read,  9  Watts,  396;  Lathrop  v.  Briggs,  8  Cow.  171;  Ransom  t). 
Keyes,  9  lb.  128  ;  and  this,  although  he  may  have  been  discharged  on  terms 
not  afterwards  complied  with  :  1  T.  R.  558  ;  6  lb.  525  ;  7  lb.  420.— e. 

A  judgment  creditor,  who  had  taken  the  body  of  his  debtor  in  execution, 
agreed  that  he  might  be  set  at  liberty  on  giving  security  to  abide  the  event  of 
the  trial  of  an  issue  to  be  framed  for  ascertaining  whether  he  had  the  means, 
by  the  property  in  his  marriage  settlement  or  otherwise,  of  satisfying  the 
judgment;  the  debtor  acknowledging  that  this  agreement  was  made  for  his 
accommodation,  without  prejudice  to  the  creditor's  right  by  the  debtor's  enlarge- 
ment. The  issue  was  tried  accordingly,  and  found  for  the  debtor.  Held,  that 
the  taking  of  the  body  of  the  debtor  in  execution  was  a  satisfaction  of  the 
debt,  at  law ;  and  that  equity  would  not  enforce  the  debt  against  property 
afterwards  coming  to  the  debtor  on  the  death  of  his  wife,  by  the  trusts  of  the 
marriage  settlement :  Magniac  v.  Thomson,  15  How.  281. — s. 

116 


LECT.   III. J  GUARANTIES.  110 

of  the  Statute  of  Frauds?  The  Court  of  Queen's 
Bench,  in  MountstejDhen  v.  Lakeman  [k),  held  that  it' 
might  be,  if  at  the  time  the  promise  was  made  the 
promisor  and  promisee  expected  that  a  legal  obligation 
would  be  incurred  by  the  third  person.  In  that  case 
the  plaintiff  had  been  employed  to  construct  a  main 
sewer  by  a  Local  Board  of  Health,  of  which  the  defend- 
ant was  chairman.  When  the  sewer  was  nearly  com- 
pleted the  board  gave  notice  (under  11  &  12  Vict.  c. 
63,  s.  69)  to  the  occupiers  of  the  adjoining  houses  to 
connect  their  drainage  within  21  days,  or  the  board 
would  do  the  work  at  their  expense.  Before  the  21 
days  had  expired,  the  plaintiff,  having  completed  the 
sewer,  was  about  to  leave  the  place  with  his  carts,  etc., 
when  the  defendant  sent  after  him,  and  the  folloAving 
conversation  took  place.  The  defendant  said  :  "  What 
objection  have  you  to  making  the  connections  ?"  The 
plaintiff  answered  :  "  I  have  none ;  if  you  or  the  board 
will  order  the  work,  or  become  resjDonsible  for  the  pay- 
ment." The  defendant  replied :  "  Go  on  and  do  the 
work,  and  I  will  see  you  paid."  Plaintiff  accordingly 
did  the  work  under  the  superintendence  of  the  surveyor 
of  the  *board ;  and  sent  in  the  account  to  the  r*i  -t  -<  -i 
board  debiting  them  with  the  amount.  The 
board  refused  payment  on  the  ground  that  they  had 
not  authorised  the  order,  and  after  more  than  two  years, 
the  account  being  still  unpaid,  the  plaintiff  brought  an 
action  against  the  defendant.  The  Court  of  Queen's 
Bench  thought  that  the  conversation  did  not  amount  to 
an  undertaking  of  the  defendant  to  be  j)rimarily  liable 
for  the  work ;  but  only  to  a  promise  that,  if  the  plain- 
tiff would  do  the  work  on  the  credit  of  the  board,  the 
defendant  would  pay  if  the  board  did  not ;  and  that 
this  was  a  promise  to  be  answerable  for  the  debt  of 

(k)  L.  E.  5  Q.  B.  013  ;  39  L.  J.  (Q.  B.)  275. 

117 


Ill  THE   STATUTE   OF   FRAUDS.  [lECT.  III. 

another  within  sect.  4  of  the  Statute  of  Frauds,  which 
not  being  in  writing  could  not  be  enforced.  The  Court 
of  Exchequer  Chamber  how^ever  thought  that  there  was 
evidence  on  which  the  jury  might  have  found  that  the 
defendant  agreed  to  be  primarily  liable,  and  on  this 
ground  reversed  the  judgment  of  the  Queen's  Bench  (/); 
and  the  decision  of  the  Exchequer  Chamber  was  subse- 
quently affirmed  in  the  House  of  Lords  (m).  The 
affirmative  proposition  therefore  laid  down  by  the 
Court  of  Queen's  Bench  being  in  the  opinion  of  the 
Exchequer  Chamber  not  necessary  to  the  decision  of 
the  case,  and  the  House  of  Lords  affirming  the  decision 
r*1 1 91  ^^  ^^^^  latter,  *the  proposition  itself  seems  at  pres- 
ent still  doubtful,  so  far  at  least  as  it  is  incon- 
sistent with  the  previous  decisions  (?i). 

It  was  at  one  time  thought  that  a  verbal  promise, , 
even  to  answer  for  the  debt  of  another  for  which  that 
other  remained  liable,  might  be  available  if  founded  on 
an  entirely  new  consideration,  conferring  a  distinct 
benefit  upon  the  party  making  such  promise.  This 
idea  is,  however,  confuted  by  Serjt.  Williams  in  his 
elaborate  note  to  the  case  of  Forth  v.  Stanton  (o).  The 
rule  there  laid  down  by  him,  which  has  ever  since  been 
approved  of,  is,  that  the  only  test  and  criterion  by 
which  to  determine  whether  the  j)romise  needs  to  be  in 
writing,  is  the  question  whether  it  is  or  is  not  a  promise 
to  answer  for  a  debt,  default,  or  miscarriage  of  another, 
for  which  that  other  continues  liable  {p).  If  it  be  so, 
it  must  be  reduced  into  writing ;  nor  can  the  considera- 

(0  L.  R.  7  Q.  B.  19G;  41  L  J.  (Q.  E.)  67. 

(m)  Lakeman  v.  Mountstephen,  L.  R.  7  H.  L.  (E.  &  I.)  17 ;  43  L.  J.  (Q.  B.) 
188. 

{n)  But  see  the  judgment  of  Lord  Selbome,  L.  E.  7  H.  L.  (E.  &  I.)  at  p.  24 
43  L.  J.  (Q.  B.)  192. 

(o)  1  Wms.  Saund.  211. 

(p)  Hodgson  V.  Anderson,  3  B.  &  C.  (10  E.  C,  L.  R.)  855;  Taylor  v.  nilarjr, 
1  C.  M.  &  R.  741 ;  Browning  v.  Stallard,  5  Taunt.  (1  E.  C.  L.  R.)  450. 
118 


LECT.  HI.]  GUARANTIES.  112 

tion  in  any  case  be  of  importance  except  in  such  cases 
as  Goodman  v.  Chase,  in  which  the  consideration  to  the 
person  giving  the  j)romise  is  something  Avhich  extin- 
guishes  the   original   debtor's  liability    (q)}      It    has 

{q)  You  will  see  Sergt.  Williams's  criterion  approved  of  in  Green  v.  Cress- 
well,  10  A.  &  E.  (37  E.  C.  L.  R.)  453,  and  Tomlinson  v.  Gell,  6  A.  &  E.  (33 
E.  C.  L.  R.)  564. 

^  To  guard  against  the  danger  arising  from  the  facility  by  which  loose  or 
ill-remembered  words  might  be  tortured  into  a  contract  on  the  part  of  him 
who  used  them,  the  common  law  wisely  provided  that  a  liability  should  not 
depend  upon  mere  words  unaccompanied  by  a  consideration  for  tlieir  basis. 
And  as  the  danger  was  felt  to  be  the  more  strong  where  the  words  related  not 
to  an  undertaking  by  a  party  for  his  own  benefit,  but  on  behalf  of  a  third  per- 
son, the  fourth  section  of  the  Statute  of  Frauds  superadded  a  writing  to  the 
common  law  requirement  of  a  consideration.  Whether  such  a  provision  has 
been  conducive  of  more  benefit  than  harm  may  well  be  doubted  (see  Holmes 
t'.  Knights,  10  N.  H.  176),  for  the  decisions  to  which  it  has  given  rise  are  as 
remarkable  for  their  multitude  as  for  the  difficulty  of  their  perfect  classifica- 
tion. 

The  cases  may  naturally  be  divided  into  thdse  where  the  promise  of  guarantee 
was  concurrent  with  the  principal  contract,  and  those  where  it  was  subsequent  to 
its  creation. 

1.  Under  the  first  of  these  classes,  the  common  law  is  satisfied-wherever  the 
promise  is  made  at  tlie  same  time  as  the  principal  contract,  and  is  an  essential 
inducement  to  it.  No  other  consideration  is  necessary  than  that  moving  be- 
tween the  creditor  and  the  original  debtor:  Kirkby  v.  Coles,  Cro.  Eliz  137; 
and  it  matters  not  whetlier  the  promise  be  absolute  or  conditional  and  de- 
pendent upon  default  of  the  other :  Leonard  v.  Vredenburg,  8  Johns.  29 ; 
Snevily  v.  Johnston,  1  W.  &  S.  307. 

The  fourth  section  of  the  Statute  of  Frauds,  however,  altered  the  common 
law  to  this  e.xtent, — where  the  promise  is  conditional  and  dependent  upon  the 
default  of  the  other,  it  must  be  in  writing;  where,  however,  it  is  not  thus  con- 
ditional and  dependent,  but  is  direct  and  absolute,  the  case  rests  as  at  common 
law,  and  the  statute  does  not  apply.  But  there  is  a  class  of  cases  which,  pro- 
ceeding upon  the  suggestion  of  Mr.  Serj.  Williams,  supra,  seems  to  determine 
that  however  direct  and  absolute  the  contract  of  the  defendant  may  be,  it  shall 
not  be  deemed  to  be  a  direct  undertaking,  so  as  to  take  the  case  out  of  the 
statute,  unless  all  liability  is  withdrawn  from  tlie  other  party,  and  thrown 
entirely  upon  the  shoulders  of  the  defendant ;  in  other  words,  althougli  tliere 
may  be  a  joint  contract,  yet  if  the  consideration  move  only  to  one,  unless  all 
the  credit  is  given  to  the  other,  the  engagement  of  that  other  is  coUateral  and 
not  direct;  it  is,  therefore,  witliin  the  statute,  and  he  is  not  liable  unless  his 
promise  and  its  consideration  appear  in  writing  :  Rogers  v.  Kneeland,  13  Wend. 
114;  Brady  v.  Sackrider,  1  Sand.  515;  Cahill  v.  Bigelow,  18  Pick.  369;  Elder 
V.  Warfield,  7  Harr.  &  J.  397  ;  Blake  v.  Parlin,  22  Me.  395 ;  Aldrich  v.  Jewell, 
12  Vt.  126;  Smith  v.  Hyde,  19  lb.  56;  Taylor  v.  Drake,  4  Strob.  437;  Ware 

119 


112  THE   STATUTE   OF   FRAUDS.  [lECT.  Ill 

also  been  considered,  that,  in  order  to  make  the  statute 

r*i  1 0-]    applicable,  the  immediate  *object  for  requiring 

the  defendant's  liability  must  be,  that  he  shall 

V.  Stephenson,  10  Leigh,  167 ;  Rhodes  v.  Leeds,  3  Stew.  &  P.  212 ;  Faires  v. 
Lodanc,  10  Ala.  50;  Holnaes  v.  Knights,  10  N.  H.  177  ;  Proprietors  i'.  Abbott, 
14  lb.  159. 

It  has  been  said,  that  it  may  admit  of  question  whether  the  application  of 
this  principle  has  not  been  carried  too  far  in  some  cases,  and  whether  what 
was  in  truth,  as  between  the  parties,  the  collateral  liability,  has  not  by  means 
of  it  been  transformed  into  a  principal  liability,  and  the  real  principal  debtor 
thereby  discharged  through  the  operation  of  the  statute :  Holmes  v.  Knights, 
10  N.  H.  178  ;  and  practically  it  may  often  happen  that  a  tradesman,  thinking 
to  increase  his  security  by  charging  the  goods  to  both  parties,  by  that  very 
means,  under  the  application  of  the  rule  sanctioned  by  the  weight  of  authority, 
loses  his  remedy  against  one  of  them. 

It  has,  moreover,  been  suggested,  upon  great  apparent  soundness  of  princi- 
ple (in  Mr.  Hare's  note  to  Birkmyr  v.  Darnell,  1  Smith  L.  (".  518,  Sth  Am.  ed.), 
that  the  question  of  the  defendant's  liability  being  direct  and  collateral,  is  not 
necessarily  wholly  dependent  upon  the  withdrawal  of  all  credit  from,  and  the 
consequent  non-liability  of,  the  party  who  receives  the  consideration  ;  in  other 
words,  tliat  there  may  be  a  direct  liability,  even  where  the  other  party  is  also 
liable.  Thus,  where  two  jointly  purchase  goods,  the  liability  of  one  is  in  no 
degree  lightened  by  the  fact  of  the  other  being  also  liable,  nor,  where  the 
liability  is  tlitis  co-extensive,  is  it  changed  in  any  way  by  the  goods  being  in- 
tended for  one  rather  than  for  the  other, — each  being  still  directly  liable,  the 
contract  cannot  be  said  to  be  "  to  answer  for  the  default  of  another,"  and  the 
case  would  seem  to  be  unafiected  by  the  statute. 

Thus,  in  Wainwright  v.  Straw,  15  Vt.  215,  it  was  held  that  where  a  stove 
■was  sold  to  two  for  the  use  of  one,  each  was  liable,  and  no  writing  was  neces- 
sary. And  where  the  promises  are  several  instead  of  joint,  yet,  if  each  has 
bound  himself  directly  and  absolutely,  the  mere  fact  that  the  consideration 
moves  to  one  only,  ought  not,  it  would  seem,  to  turn  into  a  mere  collateral 
that  which  was  in  fact  an  original  contract.  "  It  would  scarcely  seem,"  as  was 
Baid  by  Story,  J.,  in  I^Wolf  v.  Rabaud,  1  Pet.  500,  "  a  case  of  a  mere  collateral 
undertaking,  but  rather,  if  one  might  use  the  phrase,  a  trilateral  contract. 
Each  is  a  direct,  original  nrn'mise,  founded  upon  the  *anie  consideration:" 
Townsley  v.  Sumrall,  2  lb.  182;  Proprietors  v.  Abbott,  14  N.  H.  lo7.  Such  a 
view  is  not,  however,  recognized  by  the  class  of  cases  first  referred  to,  and  in 
Taylor  v.  Drake,  4  Strob.  437,  it  was  said  that  to  make  the  delivery  of  goods 
to  the  one  also  serve  as  a  consideration  for  the  promise  of  the  other,  would  be 
to  strike  down  the  statutory  shield  at  a  blow. 

2.  Where  the  promise  is  given  Kubseqtiently  to  the  creation  of  the  debt,  it  is 
evident  that  the  mere  existence  of  that  debt  cannot,  even  at  common  law,  be  a 
sufficient  consideration  for  tlie  promise.  (See  hifra,  notes  to  page  *194.)  Another 
consideration  must  exist  to  support  the  promise,  and  this  may  be  one  of  two 
kin  Is, — it  may  either  grow  out  of  the  debt  itself,  being  connected  therewith, 
mch  as  the  forbearance  to  sue  the  original  debtor,  or  it  may  be  a  new  and  in- 

120 


LECT.  III.]  GUARANTIES.  113 

pay  the  debt  of  another  if  that  other  does  not ;  and 
that,  consequently,  where  the  immediate  object  is  that 

dependent  consideration.  In  the  first  case,  although  the  promise  could  be 
supported  at  common  law,  it  is  within  the  statute,  and  a  writing  is  neces- 
sary ;  in  the  second,  the  statute  does  not  apply :  Leonard  v.  Vredenburgh,  8 
Johns.  29. 

Thus,  it  is  well  settled  that  a  forbearance  to  sue  the  original  debtor,  or  the 
discontinuance  of  a  suit  already  brought,  being  considerations  connected  with, 
and  growing  out  of,  the  original  contract,  are,  though  entirely  sufficient  at 
common  law,  nevertheless  within  the  Statute  of  Frauds :  Fish  v.  Hutchinson, 
2  Wils.  94 ;  Bennett  v.  Pratt,  4  Den.  275 ;  Durham  v.  Arledge,  1  Strob.  5 ; 
Nelson  v.  Boynton,  3  Mete.  396 ;  Stone  v.  Symmes,  18  Pick.  467.  So,  when 
the  consideration  consists  in  the  performance  of  the  preceding  contract,  as  where 
a  plaintiff  having  been  employed  by  a  contractor  to  build  certain  walls  for  the 
defendant,  refused  to  go  on  unless  the  defendant  would  promise  to  pay  him, 
which  he  did,  it  was.  held  that  the  contract  was  witliin  the  statute,  for  the  con- 
sideration related  merely  to  the  performance  of  the  antecedent  contract : 
Puckett  V  Bates,  4  Ala.  390. 

But  where  there  is  some  new  and  original  consideration  of  benefit  or  harm 
moving  between  the  new  contracting  parties,  it  is  well  settled  that  the  case  is 
not  within  the  statute  :  Leonard  v.  Vredenburgh,  supra  ;  as  where  a  promise 
to  pay  an  existing  debt  is  made  in  consideration  of  property  placed  by  the 
defendant  in  the  hands  of  the  party  tluis  promising:  Hilton  v.  Dinsmore,  21 
Me.  410;  Todd  v.  Tobey,  29  lb.  219-  Olmstead  v.  Greenly,  18  Johns.  12;  Ell- 
wood  V.  Monk,  5  Wend.  235  ;  Hindman  v.  Langford,  3  Strob.  207  ;  Lee  v.  Fon- 
taine, 10  Ala.  755  ;  Hall  v.  Kodgers,  7  Humi3h.  536  ;  or  where  tlie  party  to  whom 
the  promise  is  made  relinquishes  a  levy  on  the  goods  of  the  debtor:  Williams 
V.  Leper,  3  Burr.  1886 ;  Castling  v.  Aubert,  2  East,  325 ;  Mercein  v.  Andrus,  10 
Wend.  461 ;  Farley  v.  Cleveland,  4  Cow.  432  ;  Tindall  v.  Touchberry,  3  Strob.  177  ; 
Dunlap  V.  Thorne,  1  Kich.  213;  (though  two  late  cases  in  New  York  and  one 
in  Massachusetts,  Barker  v.  Bucklin,  3  Den.  45  ;  Kingsley  v.  Balcome,  4  Barb. 
131 ;  and  Nelson  v.  Boynton,  3  Mete.  396,  seem  to  hold,  in  opposition  to  the 
prior  authorities  in  the  former  State,  that  the  consideration  must  always  con- 
sist in  an  advantage  to  the  debtor  or  the  promisor,  and  that  a  detriment  to  tlie 
promisee  will  not  take  the  case  out  of  the  statute.) 

It  has  been  held  in  England,  and  in  several  of  our  States,  that  a  promise  to 
indemnify  the  guarantor  against  any  loss  in  consequence  of  his  undertaking, 
is  not  within  the  statute,  on  the  ground  that  the  promise  is  not  that  another 
shall  perform  that  which  he  has  undertaken,  but  that  the  promisee  shall  not 
lose  by  the  engagement  into  which  he  has  entered:  Tliomas  v.  Cook,  8  B.  & 
C.  728;  Chapin  r.  Merrill,  4  Wend.  657 ;  Chapin  v.  Lapham,  20  Pick.  467 ; 
Peck  V.  Thompson,  15  Vt.  637;  Holmes  v.  Knights,  10  N.  H.  175;  Lucas  v. 
Chamberlain,  8  B.  Mon.  276 ;  Doane  v.  Newman,  10  Mo.  09 ;  Jones  v.  Shorter, 
1  Ga.  294;  but  the  more  recent  cases  in  England  and  in  New  York  have  not 
acknowledged  this  reasoning  as  satisfactory,  "for  every  promise  to  become 
answerable  for  the  debt  or  default  of  anotlier  may  be  shaped  as  an  indem- 
nity :"  Green  v.  Cresswell,  10  A.  &  E.  (37  E.  C.  L.  K.j  453 ;  Staats  v.  Ilowlett, 

121 


113  THE  STATUTE   OF   FRAUDS.  [lECT.  IH. 

an  agent,  in  selling  for  a  principal,  should  take  unusual 
care  in  selecting  the  customers,  and  by  assuming  respon- 

4  Den.  559  ;  Kingsley  r.  Bulcome,  4  Barb.  131 ;  and  the  same  view  was  taken 
in  Drauglian  v.  Bunting,  9  Ired.  10. — B. 

[In  a  careful  oi)inion  by  Biddle,  J.,  in  the  Common  Pleas  of  Philadelphia, 
the  autliorities  on  this  last  point  are  considered.  Quoting  Brown  on  the  Statute 
of  Frauds,  he  says  that  tJie  American  decisions  have  resulted  "in  tlie  rejection 
by  the  great  preponderance  of  authority  of  the  doctrine  of  Green  v.  Cresswell, 
and  the  adoption  of  Thomas  v.  Cook — a  result  readied  after  much  vacillation 
on  the  part  of  Courts  of  the  same  State,  and  not,  it  must  be  confessed,  by 
reference  to  any  satisfactory  ground  of  principle.  Indeed,  most  of  the  deci- 
sions which  reject  the  doctrine  of  Green  v.  Cresswell  waive  altogether  the 
question  of  principle,  and  put  it  as  a  matter  settled  by  authority  that  the 
promise  to  indemnify  '  is  not  within  the  statute.'  "  However,  relying  upon  the 
English  authorities,  the  ca.se  of  Macey  v.  Childress,  2  Tenn.  Ch.  442,  and  the 
opinions  of  Mr.  Brown  and  Mr.  Reed  in  their  works  upon  this  statute,  he  de- 
cides that  a  promise  to  indemnify  a  guarantor  is  within  the  statute :  Nugent 
V.  Wolfe,  14  W.  N.  C.  290.] 

The  strong  current  of  the  authorities  is  that  if  the  party  to  whom  the  consid- 
eration moves  becomes  personally  liable  for  the  payment  of  tlie  debt,  the  en- 
gagement of  any  other  person,  though  made  at  the  same  time  and  upon  the 
same  consideration,  is  a  promise  to  pay  the  debt  of  another  within  tlie  statute : 
1  Smith's  L.  C.  527,  American  note ;  lietfield  v.  Dow,  27  N.  J.  440 ;  Rogers  v. 
Kneeland,  13  Wend.  114;  Aldrich  r.  Jewell,  12  Vt.  125  ;  Cropper  t).  Pittman, 
13  Md.  190 ;  Walker  v.  Richards,  39  N.  H.  259 ;  Carville  v.  Crane,  5  Hill,  483 ; 
Hall  V.  Farmer,  5  Den.  484  ;  Reed  v.  Holcomb,  31  Conn.  360 ;  Boykin  v.  Doh- 
londe,  1  Ala.  Sel.  Cas.  502.  This  rule  is,  in  fact,  that  stated  by  Serj.  Williams 
in  his  note  to  Forth  v.  Stanton,  1  Wms.  Saund.  21 1  a,  on  the  authority  of  Matson 
t>.  Wliaram,  2  T.  R.  80,  where  Buller,  J.,  though  he  declared  that  if  it  were  a  new 
question,  the  leaning  of  his  mind  would  be  the  other  way,  lays  it  down  broadly 
"that  if  the  person  for  whose  use  the  goods  are  furnished  be  liable  at  all,  any 
Other  promise  by  a  third  person  to  pay  that  debt  must  be  in  writing."  "  But  it 
may  be  doubted,"  says  Judge  Hare  ( 1  Smith's  L.  C.  527),  "  whether  any  decision 
has  yet  gone  so  far  as  to  refuse  to  give  efTect  to  a  direct  contract  for  the  purchase 
of  goods  merely  because  one  of  the  purchasers  is  a  surety.''  The  provision  of 
the  Statute  of  Frauds  was  intended  to  apply  only  to  contracts  strictly  of  surety- 
ship or  guaranty  ;  and  where  no  credit  is  given  to  a  third  person,  and  the  con- 
sideration does  not  move  from  him,  and  he  is  not  to  be  benefited,  the  statute 
does  not  apply,  although  such  third  person  is  primarily  liable:  Reed  v.  Hol- 
comb, 31  Conn.  360.  The  promise  of  one  person,  though  in  form  to  answer 
'or  the  debt  of  another,  if  founded  upon  a  new  and  sufficient  consideration 
moving  from  the  creditor  and  promisee  to  the  promisor,  and  beneficial  to  tlie 
latter,  is  not  within  the  statute :  Dyer  v.  Gibson,  16  Wis.  557.  The  decisive 
question  is  to  whom  the  credit  was  given  :  Boykin  v.  Dohlonde,  1  Ala.  Sel.  Cas. 
602.  A  parol  promise  to  accept  an  order  from  a  debtor  in  favour  of  liia 
creditor,  between  whom  and  the  promisor  there  has  been  no  privity,  is  a 
promise  to  pay  the  debt  of  another,  within  the  statute:  Plumraer  v.  Lyman, 
49  Me.  229 ;  Richardson  v.  WilUams,  lb.  558.— s. 
122 


LECT.  III.]  GUAKANTIES.  113 

sibility  for  their  solvency  should  preclude  all  question 
of  negligence  on  his  part,  as  where  an  agent  sells  on  a 
del  credere  commission,  the  undertaking  so  to  do  need 
not  be  in  writing  (r)  ;  for,  although  the  transaction  may 
terminate  in  a  liability  to  answer  for  the  debt  of 
another,  his  paying  that  debt  was  not  the  immediate 
object  of  the  contract  made  with  him. 

The  default  or  miscarriage  of  another  person  to 
which  the  statute  applies  need  not,  however,  be  a  de- 
fault or  miscarriage  in  payment  of  a  debt  or  in  per- 
forming a  contract.  Any  duty  imposed  by  the  law, 
although  not  the  performance  of  a  contract,  against  the 
breach  of  which  it  was  the  intention  of  the  parties  to 
secure  and  be  secured,  must  be  proved  by  writing. 
Thus,  where  one  had  improperly  ridden  another's 
horse,  and  thereby  caused  its  death,  a  promise  by  a 
third  person  to  pay  a  sum  of  money  in  consideration 
that  the  owner  of  the  horse  would  not  sue  the  wrong- 
doer was  adjudged  to  be  unavailable,  because  in  parol 
only  (s). 

In  the  case  of  Eastwood  v.  Kenyon  {£),  the  Court 
*of  Queen's  Bench  decided  a  completely  new  p-j-.^,.-, 
point  on  the  construction  of  this  branch  of  the  ^  ^ 
4tli  section.  They  held  that  the  promise,  which  is  to  be 
reduced  into  writing,  is  a  promise  made  to  the  person 
to  whom  the  original  debtor  is  liable;  but  that  a 
promise  made  to  the  debtor  himself,  or  even  to  a  third 
person,  to  answer  to  the  creditor,  would  not  require  to 
be  reduced  into  writing  {u).  In  that  case,  the  plaintiff 
was  liable  to  a  Mr.  Blackburne  on  a  promissory  note, 

(r)  Couturier  v.  Hastie,  9  Exch.  102 ;  22  L.  J,  (Exch.)  97,  s.  c. 

(s)  Kirkham  v.  Martyr,  2  B.  &  A.  613. 

(0  11  A.  &  E.  (39  E.'  C.  L.  R)  438. 

(u)  Hargreaves  v.  Parsons,  13  M.  &  W.  561 ;  see  Header  v.  Kingham,  13  C. 
B.  N.  S.  (106  E.  C.  L.  R.)  344 ;  32  L.  J.  (C.  P.)  108 ;  Wildes  v.  Dudlow,  L.  R. 
19Eq.  198;  44  L.  J.  (Ch.)  341. 

123 


114  THE   STATUTE    OF    ERA  UPS.  [l.ECT.  III. 

and  the  defendant  promised  ilie  plaintiff  to  discharge 
the  note  to  Blackburne.  The  Court  held,  that  this  was 
not  a  promise  to  answer  for  the  debt  of  another  within 
the  meaning  of  the  4th  section  of  the  Statute  of 
Frauds.^ 

"  If,"  said  Lord  Denman,  "  the  promise  had  been 
made  to  Blackburne,  doubtless  the  statute  would  have 
applied  ;  it  would  have  then  been  strictly  a  promise  to 
answer  for  the  debt  of  another ;  and  the  argument  on 
the  part  of  the  defendant  is,  that  it  is  not  less  the  debt 
of  another  because  the  j^romise  is  made  to  that  other, 
viz.,  the  debtor  and  not  the  creditor,  the  statute  not 
having  in  terms  stated  to  whom  the  promise  contem- 
plated by  it  is  to  be  made.  But  w^oio.  consideration, 
we  are  of  opinion,  that  the  statute  applies  only  to 
promises  made  to  the  person  to  whom  another  is  ariswer- 
able.     We  are  not  aware  of  any  case  in  which  the  point 

*  "Tlie  statute  applies  only,"  said  Parke,  B.,  in  the  recent  case  of  Hargreaves 
V.  Parsons,  13  M.  &  W.  569,  "to  promises  made  to  the  persons  to  whom  an- 
other is  already,  or  is  to  become  answerable  It  must  be  a  promise  to  be  an- 
swerable for  a  debt  of,  or  a  default  in  some  duty  by  that  otlier  person  towards 
the  promisee.  This  was  decided,  and  no  doubt  rightly,  by  the  Court  of  Queen's 
Bench,  Eastwood  v.  Kenyon ;"  and  the  same  point  had  been  previously  decided 
by  the  Supreme  Court  of  New  York,  in  Johnson  v.  Gilbert,  4  Hill,  178. — R. 

A  promise  made  to  a  debtor  to  pay  his  debt  to  a  third  person  is  not  within 
the  statute:  Goetz  v.  Foos,  14  Minn.  265;  Britton  v.  Angier,  48  N.  H.  420; 
Brown  v.  Brown,  47  Mo.  130;  Barker  v.  Bradley,  42  N.  Y.  316;  Tibbetts  v. 
Flanders,  18  N.  11.  284.  When  one  agrees  to  pay  for  lumber  to  be  furnished 
to  another,  this  is  an  original  promise :  Weyand  i'.  Crichfiehl,  3  Grant,  113; 
Backus  V.  Clark,  1  Kan.  303.  A  parol  promise  to  pay  the  debt  of  another  is 
binding,  where  the  promiser  holds  in  liis  hands  funds,  securities,  or  property 
of  the  debtor :  Fullam  v.  Adams,  37  Vt.  39 1 ;  Berry  v.  Doremus,  30  N.  J.  399 ; 
Clymer  v.  De  Young,  54  Pa.  St.  118 ;  Jennings  v.  Crider,  2  Bush,  322 ;  Wilson 
V.  Bevans,  58  111.  233.  When  a  third  person  has  a  lien  on  property  for  the 
payment  of  his  debt,  and  he  gives  up  his  lien  to  a  person  who  has  an  interest 
in  the  property,  upon  his  promise  to  pay  the  debt,  such  promise  is  not  within 
the  statute:  Luark  v.  Malone,  34  Ind.  444;  Hedges  v.  Strong,  3  Or.  18;  Lud- 
■wick  V.  Watson,  lb.  256  ;  Davis  v.  Banks,  45  Ga.  138.  A  promise  by  A.  to  B. 
in  consideration  of  property  delivered  to  him  by  B.,  is,  in  its  relation  to  the 
creditors  so  to  be  paid,  within  the  Statute  of  Frauds :  Clapp  v,  Lawton,  31 
Conn,  95. — s. 

124 


LECT.  ITT.]  GUARANTIES.  114 

has  arisen,  "^'or  in  which  any  attempt  has  been 
made  to  put  that  construction  upon  the  statute    '-         -^ 
which  is  now  sought  to  be  established,  and  which  we 
think  not  to  be  the  true  one." 

It  may  be  observed  here  that  formerly  in  determin- 
ing whether  a  guaranty  had  been  sufficiently  reduced 
to  writing  to  satisfy  the  4th  section,  the  question  which 
most  frequently  arose  was  whether  the  consideration  did 
or  did  not  sufficiently  appear  upon  the  written  instru- 
ment. Bat  now,  in  the  case  of  promises  to  answer  for 
the  debt,  default,  or  miscarriage  of  another  person,  it  is 
no  longer  necessary  that  the  consideration  should  appear 
upon  the  face  of  the  written  memorandum.  By  the 
Mercantile  Law  Amendment  Act,  1856  (19  &  20  Vict. 
c.  97),  s.  3,  no  special  promise  to  be  made  by  any  per- 
son after  the  passing  of  this  Act  (29th  July,  1856)  to 
answer  for  the  debt,  default,  or  miscarriage  of  another 
person,  being  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  or  some  other  person  by  him  there- 
unto lawfully  authorized,  shall  be  deemed  invalid  to 
support  an  action,  suit,  or  other  proceeding  to  charge 
the  person  by  whom  such  promise  shall  have  been 
made,  by  reason  only  that  the  consideration  for  such 
promise  does  not  appear  in  writing,  or  by  necessary 
inference  from  a  written  document  {x)} 

(x)  Glover  v.  Hackett,  26  L.  J.  (Ex.)  416;  2  H.  &  N.  487. 


^  [Note  by  Mr.  J.  C.  Syraons.]  In  Kennaway  r.  Treleaven  the  guarantee 
•wa.s  thus  worded  :  "  Gentlemen,  I  hereby  guarantee  to  you  the  sum  of  £250, 
in  case  Mr.  P.  should  default  in  liis  capacity  of  agent  and  traveller  to  you."  It 
■wjis  held  that  the  future  employment  of  Mr.  P.  was  the  consideration  of  this 
promise,  and  that  it  sufficiently  appeared  by  inference  from  the  terms  of  the 
guarantee.  But  the  case  of  Haigh  v.  Brooks,  10  A.  &  E.  (37  E.  C.  L.  R.)  309, 
is  the  strongest  on  this  point,  and  has  carried  the  latitude  of  inference  to  its 
extreme  length  :  it  was  cited  in  the  recent  case  of  Chapman  v.  Sutton,  15  L.  J. 
C.  P.  166;  and  the  guarantee  was  thus  worded:  "In  consideration  of  your 
being  in  advance  to  Messrs.  John  Lees  &.  Co.  in  the  sura  of  £10,000,  for  the 

125 


115  THE   STATUTE   OF   FRAUDS.  [lECT.  III. 

There  is  a  recent  case  in  which  a  single  signature 

*to  an  agreement  was  held  under  the  circum- 

L        -•    stances  to  have  been  made  in  a  double  capacity, 


jnirchase  of  cotton,  I  do  hereby  give  you  my  guarantee  for  that  amount  (say 
£10,000)  on  their  behalf;"  and  it  was  held,  that  whether  the  consideration, 
"your  being  in  advance,"  was  or  was  not  a  good  consideration,  depended  upon 
the  transaction  to  which  the  guarantee  referred.  Lord  Denman,  C.  J.,  re- 
marks: "Being  in  advance  does  not  necessarily  mean  that  the  plaintiff  was  in 
advance  at  the  time  of  the  giving  of  the  guarantee.  It  may  have  been  in- 
tended as  prospective."  The  judgment  in'  the  Exchequer  Chamber  was  given 
upon  this  ground;  and  Lord  Abinger,  C.  B.,  said  that  "there  was  in  tlie  guar- 
antee an  ambiguity  that  might  be  explained  by  evidence,  so  as  to  make  it  a 
valid  contract." 

Raikes  v.  Todd,  above  cited,  is  a  good  illustration  of  an  insufScient  disclosure 
of  consideration.  The  guarantee  was  thus  expressed :  "  Gentlemen,  I  hereby 
undertake  to  secure  to  you  tlie  payment  of  any  sums  of  money  you  have  ad- 
vanced, or  may  hereafter  advance,  to  Messrs.  Davenport  &  Co.,  on  tlieir  account 
with  you,  commencing  on  the  1st  November,  1831,  not  exceeding  £2000." 
Here  it  was  held  that  the  guarantee  disclosed  no  consideration  for  the  past 
advances,  and  was  to  that  extent  invalid,  but  that  it  was  good  as  regarded  the 
future  advances.  Thus,  if  the  guarantee  consists  of  several  promises,  that 
which  is  bad  may  be  rejected  without  invalidating  the  remainder  of  the  guar- 
antee. There  is  no  practical  difference  between  past  and  future  considerations, 
Bo  long  as  the  guarantee  discloses  a  sufficient  consideration  in  law  to  support 
the  promise  (of  which  see  the  next  lecture).  The  consideration  need  not  be 
co-extensive  with  the  promise.  (See  Raikes  v.  Todd,  per  Ld.  Denman,  C.  J.) 
And  the  courts  will  no  longer  enter  into  the  question  of  adequacy  of  the  con- 
sideration. See  Chapman  v.  Sutton,  supra,  which  is  the  last  case  where  tlie 
question  of  the  sufficiency  of  the  inference  of  a  consideration  has  arisen.  See 
also  Lang  v.  Nevill,  6  Jur.  217,  and  Johnston  v.  Nicholls,  1  C.  E.  (50  E.  C.  L. 
R.)  251. 

It  is  permissible  to  adduce,  in  evidence  of  the  consideration,  the  written  cor- 
respondence between  the  parties,  if  that  corresiiondence  has  been  referred  to 
in  the  guarantee,  but  not  otherwise:  see  Dobell  v.  Hutchinson,  3  A.  «&  E.  (30 
E.  (1  L.  R.)  355,  and  Higgins  v.  Dixon,  14  L.  J.  Q.  B.  329. 

The  rules  which  govern  the  construction  of  contracts,  and  which  will  be 
afterwards  considered,  of  course  apply  to  guarantees.  But  there  is  one  pecu- 
liarity attaching  to  them,  which  it  may  be  well  to  notice  here.  Guarantees  are 
either  for  definite  or  indefinite  sums  or  periods :  where  tliey  are  not  limited 
as  to  the  amount  guaranteed,  or,  being  so  limited,  are  in  either  case  intended  to 
affect  future  transactions  until  revoked,  they  are  termed  continuing  guarantees. 
The  distinction  between  these  two  classes  of  guarantees  is  one  of  some  nicety, 
and  often  of  importance,  as  regards  the  sufficiency  of  the  consideration,  which 
again  frequently  depends  upon  whether  it  be  past  or  prospective. 

The  only  safe  rule  of  construction  is  to  give  the  words  used  their  natural 
meaning,  taking  into  account  the  attendant  circumstances  which  are  admis- 
126 


LECT.  III.]  GUARANTIES.  116 

viz.,  as  agent  for  one  of  the  contracting  parties,  and 
also  independently  as  a  guarantor.     The  facts  were  as 

sible  in  evidence  to  throw  light  upon  the  intent  of  the  parties  to  the  instru- 
ment. This  rule  has  been  recently  applied  in  the  case  of  Allnutt  v.  Aslien- 
den,  5  M.  &  G.  (44  E.  C.  L.  R.)  392,  -wliere  the  guarantee  was  thus  worded : 
"  I  hereby  guarantee  Mr.  John  Jennings's  account  with  you  for  wine  and 
s.pirits,  to  the  amount  of  £100."  This  was  held  to  apply  to  an  existing  ac- 
count ;  "  for,"  said  Tindal,  C.  J.,  "  by  account  I  understand  the  parties  to 
mean  some  account  contained  in  some  ledger  or  book ;  and  the  case  shows 
that  there  was  such  an  account  existing  at  that  time.  The  natural  construc- 
tion of  the  guarantee,  therefore,  is  that  it  relates  to  that  account."  In  the 
subsequent  case  of  Hitchcock  v.  Humfrey,  5  M.  &  G.  (44  E.  0.  L.  R.)  559,  the 
defendant,  having  guaranteed  the  payment  of  goods  to  be  supplied  by  the 
plaintiffs  to  A.,  up  to  the  1st  of  July,  gave,  on  the  9th  of  April,  the  follow- 
ing additional  guarantee :  "  In  consideration  of  your  extending  the  credit 
already  given  to  A.,  and  agreeing  to  draw  upon  him  at  three  months  from 
the  first  of  the  following  month,  for  all  goods  purchased  up  to  the  20th  of  the 
preceding  month,  I  hereby  guarantee  the  payment  of  any  sum  that  shall  be 
due  and  owing  to  you  upon  his  account  for  goods  supplied."  This  was  held 
to  be  a  continuing  guarantee :  the  words  "  following  month  "  and  "  preceding 
montli "  being  held  to  have  a  general  application,  the  terms  of  the  first 
guarantee  being  taken  into  account  in  construing  the  language  of  the  second. 
For  other  cases  of  the  construction  put  on  these  instruments,  see  Mayer  v, 
Isaac,  6  M.  &.  W.  605;  Jenkins  v.  Reynolds,  3  B.  &  B.  (7  E.  C.  L.  R.)  14; 
Allan  V.  Kenning,  9  Bing.  (23  E.  C.  L.  R.)  618 ;  Batson  v.  Spearman,  9  A.  & 
E.  (36  E.  C.  L.  R.)  298;  Hargreave  v.  Smee,  6  Bing.  (19  E.  C.  L.  R.)  244; 
Nicholson  v.  Paget,  1  Cr.  &  M.  48 ;  Martin  v.  Wright,  14  L.  J.  Q.  B.  142 
[since  reported,  6  Q.  B.  (51  E.  C.  L.  R.)  917]  ;  and  Johnson  v.  Nicholls, 
supra.^ 

^  So  a  guarantee,  "  If  D.  wishes  to  take  goods  of  you,  we  are  willing  to  lend 
our  names  as  security  for  any  amount  he  may  wish,"  was  held  not  to  extend 
beyond  the  first  delivery  of  goods :  Rogers  v.  Warner,  8  Johns.  119.  The 
same  construction  was  given  in  Aldricks  v.  Higgins,  16  S.  &  R.  212,  where 
the  words  were :  "  L.  C.  having  a  desire  to  enter  into  trade  in  a  small  way, 
we  hereby  offer  ourselves  as  security  to  any  gentleman  who  may  feel  disposed 
to  give  him  credit  not  exceeding  $700,  or  anything  less,  as  he  may  think 
proper  to  contract;"  in  White  v.  Reed,  15  Conn.  4-57;  "In  any  sum  my  son 
G.  may  become  indebted  to  you,  not  exceeding  $200,  I  will  hold  myself  ac- 
countable ;"  in  Anderson  v.  Blakely,  2  W.  &  S.  237  :  "  Mr.  P.  having  informed 
me  that  he  is  making  some  purchases  from  you,  and  that  you  wish  some  refer- 
ence, I  would  say  that  you  might  credit  him  with  perfect  safety,  and  that 
anything  lie  might  purchase  from  you  I  will  see  paid  for,"  where  the  court 
said  :  "  There  is  more  reason,  perhaps,  for  giving  a  freer  interpretation  where 
the  sum  is,  as  in  several  of  tlie  cases,  limited,  because  tliere  tlie  party  in- 
trenches himself  within  a  certain  amount,  beyond  which  he  can  in  no  ca.se 
be  made  liable.     But  when  there  is  no  restriction  of  the  amount,  the  guaran- 

127 


116  THE   STATUTE   OF    FEAUDS.  [lECT.  III. 

follows  : — By  articles  of  agreement  under  seal  between 
J.  A.  &  Co.  and  Y.  &  Co.,  Y.  &  Co.  agreed  to  do  cer- 
tain work  for  which  J.  A.  &  Co.  were  to  make  certain 
payments,  and  the  agreement  contained  this  clause : 
"  It  is  further  understood  between  the  parties  to  this 
contract  that  J.  O.  Schuler  guarantees  payment  to  Y. 
&  Co.  of  all  moneys  due  to  them  under  this  contract." 
The  attestation  clause  was  "signed  and  delivered  by 
the  said  J.  A.  &  Co.  in  the  j)resence  of  C.  T.,"  and 
Schuler,  acting  under  a  power  of  attorney,  signed  as 

The  cases  turn,  as  remarked  by  the  Lord  Chief  Justice  in  that  of  Martin  v. 
"Wright,  on  the  particular  terms  of  each  guarantee,  and  it  is  therefore  impos- 
sible to  lay  down  any  less  general  rule  of  construction  than  that  which  we 
have  endeavoured  to  give. 

Promises  to  answer  for  tortious  defaults  are  within  the  operation  of  the 
statute,  as  well  as  guarantees  of  credit.  Kirkham  v.  Marter,  2  B.  &  Aid.  613, 
is  a  leading  authority  on  this  point.  A.  having  killed  B.'s  horse,  C  guaran- 
tees to  B.,  the  owner,  to  answer  for  the  damage :  this  was  held  to  be  within 
the  statute.  Lord  C.  J.  AbboU  uistinguishes  this  case  from  that  of  Eeed  v. 
Nash,  1  Wils  305,  but  which  jSerjeant  Williams  thinks  it  overrules :  1  Saund. 
211,  c.  n.  1. 

Shares  in  a  joint  stock  company  are  mere  choses  in  action ;  but  railway 
shares,  it  is  submitted,  inasmuch  as  they  give  an  interest  in  land,  would  fall 
under  the  operation  of  the  4th  section. 


tee  sliould  be  carefully  scanned,  to  see  whether  it  justifies  a  party  in  the  large 
construction  contended  for."  And  the  same  view  was  taken  in  Whitney  v. 
Groot,  24  Wend.  82,  upon  the  words :  "  We  consider  I.  V.  good  for  all  he 
may  want  of  you,  and  we  will  sell  him  all  he  reasonably  asks  of  us  on  credit, 
and  we  will  indemnify  the  same."  On  the  other  hand,  in  Grant  v.  Kidsdale, 
2  Harr.  &  J.  186,  "  I  will  guarantee  their  engagements,  should  you  think  it 
necessary,  for  any  transaction  they  may  have  with  your  house,"  was  held  to 
be  a  continuing  guarantee  till  countermanded,  but  the  reasons  for  the  judg- 
ment are  not  reported.  Instances  of  continuing  guarantees  will  be  found  in 
Clark  V.  Burdett,  2  Hall,  197  ;  Mussey  v.  Eayner,  22  Pick.  223;  Bent  v.  Harts- 
horn, 1  Mete.  24;  Douglass  v.  Reynolds,  7  Pet.  113;  Lawrence  v.  M'Calmont, 
2  How.  426.  As,  for  example,  "  Mr.  R.  is  about  to  establish  a  store  of  books 
and  stationery.  He  will  commence  on  a  limited  scale  with  the  intention  of 
enlarging  the  business  next  spring.  He  wishes  to  purchase  school-books,  Ac, 
on  a  credit  of  four  or  six  months,  and  paper,  &c.,  on  commission.  For  the 
faithful  management  of  the  business,  and  punctual  fulfilment  of  contracts  re- 
lating to  it,  the  subscriber  will  hold  himself  responsible :"  Mussey  v.  Rayner. 
While  it  is  undoubtedly  true  that  each  case  must  depend  on  the  particular 
terms  of  the  guarantee,  aided  by  the  attendant  circumstances  of  the  parties,  it 

128 


LECT.  III.]  GUARANTIES.  116 

follows :  "  P.  P.  A.— J.  A.  &  Co.,  J.  O.  Sclmler."     Y. 

6  Co.  sued  Schiller  as   guarantor,  and   evidence  was 

has  been  often  suggested,  if  not  held,  that  the  language  should  be  very  strong 
to  justify  a  court  in  holding  a  guarantee  to  be  a  continuing  one,  until  notice 
given  to  the  contrary :  per  Story,  J.,  in  Cremer  v.  liigginson,  1  Mass.  3  >. : 
Nicholson  ■;;.  Paget,  1  Cr.  &  M.  48  ;  while,  on  the  other  hand,  it  has  been  more 
repeatedly  held  that  the  ordinary  maxim,  that  the  words  of  the  instrument 
should  be  taken  most  strongly  against  the  party  using  them,  fully  applied  to 
guarantees :  Mason  v.  Pritchard,  12  East,  227  ;  Merle  v.  Wells,  2  Camp.  413 ; 
Drummond  v.  Prestman,  12  Wheat.  515  ;  Douglass  v.  Eeynolds,  supra;  Mayer 
V.  Isaac,  6  M.  &  W.  610  ;  where  the  remarks  in  Nicholson  v.  Paget,  supra,  are 
disapproved. 

There  is  an  important  class  of  ca.ses  upon  the  subject  of  notice  to  the  guar- 
antor, the  doctrine  of  which  may  be  said  to  be  almost  peculiarly  American. 
It  is  a  rule  of  the  common  law,  that  wliere  a  party  stipulates  to  do  a  certain 
thing  in  a  certain  specific  event,  which  may  become  known  to  him,  or  with 
which  he  may  make  himself  acquainted,  he  is  not  entitled  to  any  notice, 
unless  he  stipulates  for  it ;  but  when  it  is  to  do  a  thing  which  lies  in  the 
peculiar  knowledge  of  the  opposite  party,  then  notice  ought  to  be  given  him  : 
Vyse  V.  Wakefield,  6  M.  &  W.  452.  But  in  the  case  of  Russell  v.  Clark,  7 
Cranch,  69,  Edmondston  v.  Drake,  5  Pet.  624,  this  principle  was,  in  its  appli- 
cation to  mercantile  guarantees,  thought  ratlier  an  obligation  of  commercial 
than  of  the  common  law,  and  in  the  subsequent  case  of  Douglass  v.  Reynolds, 

7  lb.  113,  which  is  a  leading  case  upon  the  subject,  this  view  was  directly 
sanctioned,  and  it  was  held  that  notice  of  the  acceptance  of  a  guarantee,  and 
of  tlie  giving  credit  under  it,  must  be  given  to  the  guarantor  immediately  or 
■within  reasonable  time  (unless,  indeed,  in  the  case  of  a  continuing  guarantee, 
when  it  would  not  be  necessary  to  give  notice  of  each  successive  transaction  as 
it  arose,  but  after  the  transactions  were  closed,  notice  of  the  whole  amount  for 
which  the  guarantor  was  held  responsible  sliould  be  given  to  him  within  a 
reasonable  time) ;  and  further,  that  demand  of  performance  must  be  made 
upon  the  principal,  and  immediate  notice  of  his  default  given  to  the  guarantor, 
and  that  a  failure  so  to  do  would  discharge  t-he  latter,  unless  it  be  clearly 
made  out  that  under  the  circumstances  of  tlie  case  no  injury  had  resulted  to 
him  from  the  neglect.  This  rule  has  been  frequently  affirmed  by  the  Supreme 
Court  of  the  United  States,  and  adopted  in  most  of  the  States,  and  tlie  student 
will  find  the  authorities  collected  and  their  distinctions  classified  in  the  first 
volume  of  American  Leading  Cases,  p.  50,  note  to  Douglass  v.  Reynolds. 
Some  of  the  authorities  where  the  subject  is  most  elaborately  discussed,  are 
Craft  V.  Ishara,  13  Conn.  28  ;  Wildes  v.  Savage,  1  Sto.  22;  Howe  v.  Nickels,  22 
Me.  175.  In  many  of  the  cases  notice  would  have  been  necessary  under  tlie 
common  law  rule  referred  to,  but  the  authorities  have  based  them  upon  the 
principles  of  commercial  law. 

In  New  York,  however,  dissent  from  this  doctrine  of  notice  has  been  ex- 
pressed in  Douglass  v.  Howland,  24  Wend.  35 ;  Whitney  v.  Groot,  lb.  82 ; 
Smith  V.  Dann,  6  Hill,  543  ;  Curtis  v.  Brown,  2  Barb.  51 ;  Union  Bank  i\  Coster, 
3  N.  Y.  203.     In  the  first  of  these  cases  the  defendant's  agreement  was  such 

9  129 


116  THb:   STATUTE   OF    FEAUDS.  [lECT.  III. 

given  at  the  trial  of  statements  by  Scliulcr  at  the  tinie 
of  execution  that  he  intended  to  sign  on  his  own  behalf 


(viz.  that  one  B.  sliould  faithfully  perform  an  agreement  with  the  plaintiff  to 
account  and  pay  over  all  such  sums  as  should  be  found  due  from  him  to  the 
latter),  as  would  not  have  required  notice  under  any  circumstance,  as  the 
events  to  which  it  referred,  though  prospective,  were  not  dependent  on  the 
option  of  the  plaintifi';  but  the  court  held  that  as  a  general  rule,  when 
nothing  on  the  face  of  the  guarantee  required  notice,  the  court  could  not  exact 
one  as  a  condition  precedent  to  a  recovery.  In  the  opinion  of  the  annotator 
referred  to,  the  weight  of  reasoning  lies  between  these  two  classes  of  cases,  and 
points  to  the  following  rule :  that  in  all  cases  in  which  tlie  contract  of  a  guar- 
antor does  not  determine  precisely  the  nature  and  the  amount  of  liability  for 
which  he  is  willing  to  make  himself  responsible,  and  leaves  either  or  both 
these  points  to  the  clioice  of  the  person  who  seeks  to  enforce  the  guarantee, 
the  latter  is  bound  to  give  notice  of  the  mode  in  which  he  has  exercised  the 
election  thus  accorded  him,  and  cannot  complain  that  there  has  been  a  default 
on  the  part  of  the  defendant  before  giving  him  precise  information  as  to  what 
is  necessary  to  be  done  in  order  to  fulfil  his  engagements;  but  that  when  the 
defendant's  contract,  instead  of  leaving  open  the  cause  of  action  upon  which 
he  is  willing  to  make  himself  liable,  points  out  some  mode  of  performance,  in 
consideration  of  which  he  is  willing  to  be  bound,  either  directly  or  on  behalf 
of  another  person,  an  action  will  lie  without  notice  as  soon  as  the  consider- 
ation has  been  performed. 

Notwithstanding  a  few  decisions  or  dicta  to  the  contrary,  2  M'Lean  21,  lb. 
369,  lb.  557,  the  weight  of  authority  has  unquestionably  settled,  that  however 
necessary  notice  may  be  to  a  recovery,  it  need  not  be  averred  in  the  declara- 
tion :  Gibbs  v.  Cannon,  9  S.  &  E.  198 ;  Ehett  v.  Poe,  2  How.  485 ;  Salisbury  v. 
Hale,  12  Pick.  424  ;  Dole  v.  Young,  24  lb.  250  ;  Wildes  v.  Savage,  1  Sto.  22  ; 
inasmuch  as  the  want  of  notice  will  only  operate  as  a  defence  to  the  guarantor 
where  it  has  resulted  in  some  actual  injury  to  him,  and  is  different  in  its  oper- 
ation in  this  respect  from  the  notice  required  to  charge  an  endorser  of  a 
negotiable  instrument,  in  which  case  the  rule  is  inflexible  and  open  to  no 
inquiry  whether  notice  could  have  availed  him  or  not,  as  in  either  case  the 
endorser  is  absolutely  discharged. 

Before  leaving  the  subject  of  guarantees,  it  may  be  remarked  that  in  Peiin- 
sylvania,  a  peculiar  signification  has  been  given  to  the  word  guarantee,  as  dis- 
tinguished from  other  words  of  similar  import,  such  as  "agree  to  become 
answerable,"  or  the  like,  and  a  guarantee  of  a  debt  due  by  another,  merely 
imports  an  undertaking  that  the  debt  is  susceptible  of  collection,  and  the 
guarantor  is  not  liable  until  the  insolvency  of  the  principal  is  shown.  Such 
a  course  of  decision,  though  it  has  been  sometimes  regretted,  is  firmly  estab- 
lished by  a  class  of  cases:  Johnston  v.  Chapman,  3  P.  &  W.  18 ;  Isett  v.  Hoge, 
2  Watts,  128 ;  Snevily  v.  Ekel,  1  W.  &  S.  204 ;  Parker  v.  Culvertson,  1  Wall. 
Jr.  161.— R. 

A  guarantor  may  specify  in  the  letter  of  credit  the  terms  on  which  he  will 
be  bound ;  and  if  these  terms  are  complied  with  he  is  bound,  though  the  law 
would  have  prescribed  the  performance  of  other  acts  liy  the  party  seeking  to 

130 


LECT.  III.]  GUARANTIES.  116 

as  well  as  on  that  of  J.  A.  &  Co.  A  verdict  was  found 
for  the  plaintiffs.  Schuler  moved  for  a  new  trial,  on 
the  ground  that  on  the  face  of  the  agreement  he  had 
not  signed  on  his  own  behalf,  and  that  the  evidence  was 
inadmissible  to  show  that  he  had.  It  was  held,  how- 
ever, by  the  Court  of  Appeal,  affirming  the  decision 
of  the  Queen's  Bench  Division,  that,  there  being  an 
ambiguity  on  the  face  of  the  contract  as  to  the  capacity 
in  which  Schuler  signed,  evidence  that  the  latter  in- 
tended to  sign  in  his  own  right  as  well  as  *on  be-  r;:: .  -.  r--i 
half  of  J.  A.  &  Co.  did  not  contradict  the  docu- 
ment, and  was  admissible,  and  that  Schuler  must  be 
taken  to  have  signed  in  the  double  capacity  of  agent 
and  guarantor  (y). 

There  is  one  thins;  which,  thousfh  collateral  to  the 
Law  of  Contracts,  relates  so  j^cculiarly  to  this  branch 
of  the  Statute  of  Frauds,  that  I  think  it  ought  to  be 
mentioned.  After  the  4th  section  of  the  Statute  of 
Frauds  had  rendered  verbal  guaranties  unavailable, 
actions  upon  the  case  for  fake  representations,  under 
circumstances  in  which,  before  the  Act,  the  transaction 
would  have  been  looked  on  as  one  of  guaranty,  were 

{y)  Young  v.  Schuler,  11  Q.  B.  D.  651. 


subject  him  on  his  guarantee.  Therefore  a  guarantor  undertaking  to  pay  on 
receiving  reasonable  notice  of  the  failure  of  the  principal  debtor  to  pay,  dis- 
penses with  notice  of  the  acceptance  of  the  guarantee,  even  if  the  law  would 
have  required  such  notice :  Wadsworth  v.  Allen,  8  Gratt.  174.  See  also 
Baker  v  Rand,  13  Barb.  152 ;  Spicer  v.  Norton,  lb.  542 ;  Bickford  v.  Gibbs,  8 
Cush.  154;  Klein  v.  Currier,  14  111.  237;  Farmers'  and  Mechanics'  Bank  t). 
Kercheval,  2  Mich.  504. 

As  to  the  necessity  of  notice  of  acceptance  of  the  guarantee,  see  Unangst  v. 
Hibler,  26  Pa.  St.  150 ;  Lawton  v.  Maner,  9  Rich.  335 ;  Yancy  v.  Brown,  3 
Sneed,  89 ;  M'Dougal  v.  Calef,  34  N.  H.  534 ;  Kellogg  v.  Stockton,  29  Pa.  St. 
460;  Cahuzac  v.  Samini,  29  Ala.  288;  Bright  v.  M'Knight,  1  Sneed,  158 ; 
Wardlaw  v.  Harrison,  11  Rich.  62G;  Paige  v.  Parker,  8  Gray,  211 ;  ^McNaugh- 
ton  t).  Conkling,  9  Wis.  316;  Powers  v.  Bumcratz,  12  Ohio  St.  273;  ]Maynard 
V.  Morse,  36  Vt  617.— s. 

131 


117  THE   STATUTE    OF    FRAUDS.  [lECT.  III. 

often  brought.  For  instance,  if  A.  went  to  a  tradesman 
to  persuade  him  to  supply  goods  to  B.,  by  assuring  him 
that  he  should  be  paid  for  them,  the  tradesman,  in  case 
of  B.'s  default,  could  not  bring  an  action  of  assumpsit 
as  upon  a  guaranty,  because  there  was  no  written  memo- 
randum of  what  j)assed ;  but  he  brought  an  action  on 
the  case,  in  which  he  accused  A.  of  having  knowingly 
deceived  him  as  to  B.'s  ability  to  pay :  and  if  the  jury 
thought  this  case  made  out,  he  succeeded  in  his  action, 
and  received  pretty  nearly  the  same  sum  as  he  would 
have  done  if  there  had  been  a  guaranty.  However,  as 
this  was  inconsistent  with  the  object  of  the  Statute  of 
Frauds,  the  legislature  put  an  end  to  it  by  enacting,  in 
statute  9  Geo.  IV.  c.  14,  s.  6,  commonly  called  Loid 
'^'Tenterden's  Act  (which,  however,  is  not  con- 
^  -'  fined  to  cases  within  the  Statute  of  Frauds)  (z), 
"  that  no  action  shall  be  brought  whereby  to  charge  any 
person  upon  or  by  reason  of  any  re23resentation  or  assur- 
ance made  or  given  concerning  or  relating  to  the  char- 
acter, conduct,  credit,  ability,  trade,  or  dealings  of  any 
other  person,  to  the  intent  or  purpose  that  such  other 
person  may  obtain  credit,  money,  or  goods  upon  (a), 
unless  such  representation  or  assurance  be  made  in 
writing,  signed  by  the  party  to  be  charged  there- 
with." ^ 

(z)  Devaux  v.  Steinkeller,  per  Tindal,  C.  J.,  6  Bing.  N.  C.  (37  E.  C.  L.  E.) 
88. 

(a)  It  was  probably  intended  that  the  words  "  money  or  goods  upon,"  which 
were  added  in  the  Committee  upon  the  Bill,  should  precede  the  word 
"  credit." 

^  It  appears  that  statutes  similar  to  this  section  of  Lord  Tenterden's  Acts  have 
been  adopted  in  Alabama,  California,  Indiana,  Kentucky,  Maine,  Massachu- 
setts, Michigan,  Missouri,  Oregon,  South  Carolina,  Vermont,  Virginia,  and 
Wyoming  Territory.  In  some  of  these  statutes  is  incorporated  the  provision  that 
the  party  shall  be  bound  by  the  signature  of  an  agent  duly  authorized  to  sign. 
See  the  acts  collected  in  the  Appendix  of  Statutes  to  Mr.  Eeed's  Work  on 
the  Statute  of  Frauds.  It  has  been  held  that  the  existence  of  fraud  will  take 
the  case  out  of  the  statute:  Warren  v.  Barker,  2  Duv.  156;  Sims  v.  Eiland, 

132 


LECT.  III.]  GUARANTIES.  118 

A  trader  being  in  bad  circumstances  and  indebted  to 
tlie  defendant,  applied  to  plaintiff  for  goods  on  credit, 
and  referred  him  to  defendant  for  her  character ;  in  fact, 
she  had  dealt  with  defendant  to  a  considerable  amount 
but  had  fallen  into  arrear,  and  defendant  had  ceased  to 
supply  her  for  some  time,  but  had  gone  on  again  upon 
her  undertaking  to  discharge  her  arrears  at  so  much  per 
week.  The  plaintiff  inquired  of  the  defendant's  shop- 
man as  to  her  credit,  and  defendant,  on  being  referred 
to  by  the  shopman,  said,  that  he  might  give  her  a  fair 
character,  which  the  shopman  repeated  to  the  plaintiff, 
and  he  thereu]3on  trusted  her  with  goods.  Tiiese  goods 
she  sold,  and  paid  defendant  with  the  ^proceeds,  ^^  _. 
but  never  paid  the  plaintiff.  Tlie  Court  of  '-  -^ 
King's  Bench  decided  that  evidence  of  the  defend- 
ant's representation  through  his  shopman  to  the  plain- 
tiff could  not  be  admitted,  not  having  been  made  in 
writing  (Z>). 

It  has  since  been  considered  in  the  construction  of 
this  statute,  that  a  representation  by  a  jjerson,  that  the 
title-deeds  of  an  estate  which  A.  had  bought  were  in 
that  person's  possession,  that  nothing  could  be  done 
with  the  estate  without  his  knowledge,  and  consequently 
that  the  plaintiff  would  be  safe  in  lending  money  to  A., 
was  a  representation  made  concerning  A.'s  ability ;  and, 
therefore,  as  it  was  not  in  writing,  the  defendant  w^as 
not  liable  on  account  of  its  falsehood  (c).  It  has  also 
been  considered  that  a  representation  by  a  partner  as  to 
the  credit  of  a  firm  in  which  he  was  a  partner  is  a  repre- 

(6)  Haslock  v.  Ferguson,  7  A.  &  E.  (34  E.  C.  L.  E.)  86. 
(c)  Swan  V.  Phillips,  8  A.  &  E.  (35  E.  C.  L.  K.)  457. 

57  Miss.  607 ;  but  the  fact  that  the  party  making  the  representation  will 
derive  benefit  from  the  credit  given  is  not,  of  itself,  sufficient  to  raise  a  con- 
clusive presumption  of  fraud  :  Pearson  v.  Seligman,  48  L.  T.  N.  S.  4S2  ;  Mann 
V.  Blanchard,  2  Allen,  386.  See  also  McLean  v  Dun,  1  Ont.  App.  153;  St. 
John  V.  Ilendrickson,  81  Ind.  350 ;  Hunter  i-.  Randall,  02  Me.  423. 

133 


119  THE   STATUTE    OF    FRAUDS.  [lECT.  III. 

sentation  as  to  tlie  credit  of  another  j^erson  within  the 
meaning  of  the  statute  (d). 

In  Wade  v.  Tatton,  which  was  decided  in  the  Court 
of  Exchequer  Chamber,  that  Court  determined  that 
where  a  written  representation  is  made  as  to  the  char- 
acter of  a  third  person,  and  also  a  parol  representation 
of  the  character  of  the  same  person,  and  the  person  de- 
ceived thereby  trusted  to  both  representations,  and 
would  not  have  trusted  to  either  of  them  alone,  that  the 
party  deceived  ^thereby  may  maintain  an  action 
I-  ^  -I  — a  material  part  of  the  representation  having 
been  made  in  writing  {e). 

The  effect  of  this  section  (of  Lord  Tenterden's  Act) 
was  also  much  discussed  in  the  great  case  of  Lyde  v. 
Barnard  (/),  in  which  the  Judges  of  the  Court  of  Ex- 
chequer differed,  but  the  judgments  in  which  will  repay 
a  very  attentive  perusal. 

It  has  been  held  that,  although  under  the  above  sec- 
tion of  Lord  Tenterden's  Act,  the  signature  of  an  agent 
generally  is  not  sufficient,  yet  that  in  the  case  of  a  bank- 
ing company  formed  under  7  Geo.  IV.,  c.  46,  the  signa- 
ture of  the  manager  is  the  signature,  not  merely  of  an 
agent,  but  of  the  company  itself,  and  therefore  "  the 
signature  of  the  party  to  be  charged  "  w^ithin  that  sec- 
tion (g).  In  the  case  just  cited,  it  did  not  apjDcar  that 
there  was  any  other  mode  of  signing  by  the  bank  except 
by  the  manager. 

The  third  of  the  species  of  contracts  enumerated  by 
the  4th  section,  and  required  by  it  to  be  evidenced  in 
writing  is — any  agreement  made  in  consideration  of  mar- 
riage. 


(d)  Devaux  v.  Steinkeller,  6  Bing.  N.  C.  (37  E.  C.  L.  E.)  84. 

(e)  25  L.  J.  (C.  P.)  240;  18  C.  B.  (86  E.  C.  L.  R.)  371. 
(/)  1  M.  &  W.  101. 

(g)  Swift  V.  Winterbotham,  L.  R.  8  Q.  B.  244;  42  L.  J.  (Q.  B.)  111. 

131 


LECT.  III.]  MAERIAGE   CONTRACTS.  120 

It  certainly  would  strike  any  one  (except,  perhaps,  a 
lawyer)  that  a  promise  by  a  woman  to  marry  a  man,  in 
consideration  of  his  promise  to  marry  her,  was  an  agree- 
ment made  in  '''consideration  of  marriage.  And,  r*ioi-| 
indeed,  in  Philpott  v.  Wallet  (A),  it  was  ex- 
pressly so  decided.  That  was  an  action  of  assumpsit 
for  breach  of  promise  of  marriage,  in  which  the  jury 
found  the  promise,  and  found  also  that  it  had  not  been 
reduced  to  writing.  And  it  was  objected,  "  that  this  is 
no  promise  within  the  Statute  of  Frauds  and  Perjuries, 
for  that  must  be  intended  of  promises  to  pay  money 
upon  marriages,  and  not  of  promises  to  marry."  But 
the  report  proceeds  to  say  that  to  this  it  was  answered 
and  resolved,  that  this  promise  is  directly  within  the 
words  of  the  statute,  and  not  out  of  the  intent,  because 
the  promise  is,  that  in  consideration  the  one  would  marry 
the  other,  the  other  would  marry  him.  However,  as 
Lord  Coke  has  observed,  the  reason  of  the  law  is  not 
always  like  a  man's  natural  reason ;  and,  accordingly, 
the  case  of  Philpott  v.  Wallet  has  been  overruled  by 
Cork  V.  Baker  (i),  and  it  has  been  decided  by  that  case, 
and  Harrison  v.  Cage  {k),  that  an  agreement  between 
two  persons  to  marry  is  not  an  agreement  in  considera- 
tion of  marriage,  within  the  meaning  of  this  enactment, 
but  that  these  terms  are  confined  to  promises  to  do 
something  in  consideration  of  marriage,  other  than  the 
performance  of  the  contract  of  marriage  itself:^ 

{h)  3  Levinz,  65.  (i)  1  Str.  34.  {k)  1  Ld.  Raym.  386. 


*  The  doctrine  of  these  cases  was  affirmed  in  Ogden  v.  Ogden,  1  Bland,  287, 
and  Clark  v.  Pendleton,  20  Conn.  508. — r. 

Other  cases  are  George  v.  Bartoner,  7  Watts,  532 ;  Crane  v.  Gough,  4  Md. 
322;  Withers  v.  Ricliardson,  5  Mon.  94;  Blackburn  v.  Mann,  85  111.  222; 
Short  V.  Stotts,  58  Ind.  36 ;  Morgan  v.  Yarborough,  5  La.  Ann.  316.  But  it  has 
been  held  that  a  contract  to  marry  in  five  years  is  within  the  prohibition  of 
the  statute  in  regard  to  parol  contracts  not  to  be  performed  within  a  year: 
Derby  v.  Phelps,  2  N.  H.  516;  see  also  Houghton  v.  Houghton,  14  Ind.  505. 

135 


121  THE   STATUTE   OF    FRAUDS.  [lECT.  III. 

Thus  a  promise  made  by  the  intended  husband  to  the 

^    intended  wife  before  marriage  to  settle  her  *per- 
r*1221  •  .       . 

L        -^    sonal  property  on  her,  will  not  be  carried  into 

effect  by  the  Court  of  Chancery  unless  evidenced  by 
writing  (l).  But  if  so  evidenced  it  would  be  otherwise, 
although  the  writing  acknowledged  the  promise  to  have 
been  made  before  the  wedding,  but  it  was,  in  fact,  made 
after  {m).  And  where  a  promise  was  made  by  a  testa- 
tor to  the  intended  husband  of  his  daughter,  previous 
to  her  marriage,  that  she  should  share  in  the  testator's 
property  equally  with  the  rest  of  his  children,  and  the 
daughter  married  the  plaintiff,  and  died  in  the  testator's 
lifetime,  leaving  issue,  but  the  testator,  who  had  not 
given  anything  to  the  daughter  on  her  marriage,  gave 
by  his  will  a  legacy  to  one  surviving  daughter,  and  be- 
queathed the  residue  of  his  projDerty  to  another,  leaving 
nothing  to  his  deceased  daughter  or  to  the  plaintiff,  her 
husband,  it  was  held  that  the  promise  of  the  testator  to 
the  plaintiff,  although  verbal  only,  yet  being  repeated 
in  terms  in  an  affidavit  made  by  the  testator  in  a  former 
legal  proceeding  against  the  plaintiff,  the  affidavit  was  a 
sufficient  compliance  with  the  requirements  of  the  stat- 
ute (n). 

We  now  come  to  the  fourth  class  of  promises,  enu- 
merated  by  the  4th  section,  viz. — any  contract, 
'-  -'  '""or  sale  of  lands,  tenements,  or  hereditaments,  or 
any  interest  in  or  concerning  them. 

These  words,  you  will  observe,  are  exceedingly  large, 
comprehending  not  merely  an  interest  in  land  itself,  but 
any  interest  concerning  \i}     And  the  main  questions 

(0  Countess  of  Montacute  v.  Maxwell,  1  Str.  236 ;  1  P.  Wms.  618 ;  Tweddle 
f.  Atkinson,  30  L.  J.  (Q.  B.)  265. 

(m)  lb. ;  s.  V.  Eandall  v.  Morgan,  12  Ves.  73. 

(n)  Barkworth  v.  Young,  26  L.  J.  (Ch.)  153 ;  Hammersley  v.  De  Biel,  12  C. 
&  Fin.  45. 

^  An  oral  promise  to  pay  presently  the  price  of  lands  conveyed  at  the  time 

136 


LECT.  III.]       CONTRACTS  FOE  THE  SALE  OF  LANDS.         123 

which  have  arisen  have  accordingly  been — Whether 
particular  contracts,  falling  very  near  the  line,  do  or  do 
not  concern  land,  so  as  to  fall  within  these  terms.  Thus 
it  was  held  in  Crosby  v.  Wadsworth  (o),  that  an  agree- 
ment conferring  an  exclusive  right  to  the  vesture  of 
land  {i.  e.,  a  growing  crop  of  mowing  grass),  during  a 
limited  time  and  for  given  purposes,  is  a  contract  for 
sale  of  an  interest  in,  or  at  least  concevning  lands ;  and 
for  the  non-performance  of  which,  if  made  by  parol,  an 
action  cannot  be  maintained.  In  Tyler  v.  Bennett  (j^), 
an  agreement  that  the  plaintiff  should  be  allowed  to  take 
water  from  a  particular  well  was  held  to  concern  land, 
and  to  require  a  writing.^  On  the  other  hand,  in  Evans 
V.  Roberts  (5-),  where  the  plaintijff  had  sold  to  the  de- 
Co)  6  East,  602 ;  Carrington  v.  Eoots,  2  M.  &  W.  248. 
(V)  5  A.  &  E.  (31  E.  C.  i..  R.)  377. 
(9)  5  B.  &  C.  (11  E.  C.  L.  R.)  829. 

to  the  promisor  is  not  within  the  statute :  Basford  v.  Pearson,  9  Allen,  387 ; 
Holland  v.  Hoyt,  14  Mich.  238;  Calhoun  v.  Atchinson,  4  Bush,  261.— s. 

^  So  of  a  right  of  permanently  overflowing  the  land  of  another :  Harris  v. 
Miller,  1  Meigs,  loS,  or  erecting  a  permanent  mill-dam  :  Stevens  v.  Stevens, 
11  Mete.  251  ;  Thompson  v.  Gregory,  4  Jolins.  81. — k. 

So  a  right  to  dig  and  carry  away  ore :  Riddle  v.  Brown,  20  Ala.  41-5 ; 
Briles  v.  Pace,  13  Ired.  279.  [A  leasehold  interest  in  an  oil  well  has  been 
held  to  be  within  the  act :  Henry  v.  Colby,  3  Brewster,  175 ;  and  also  in  a 
salt  well:  M'Dowell  v.  Delap,  2  Marsh.  33.]  An  agreement  not  to  claim  dam- 
ages for  flowing  one's  land,  if  the  other  party  will  erect  a  dam  and  mill,  is  not 
the  conferring  of  any  right,  interest  or  easement  in  land,  but  only  a  waiver  of 
claim  for  pecuniary  damages,  and  need  not  be  in  writing :  Smith  v.  Goulding, 
6  Cush.  154.  The  right  to  overflow  another's  land  by  a  mill-dam  is  an  inter- 
est in  land  which  cannot  pass  by  parol:  Carter  v.  Harlan,  6  Md.  20.  A  license 
by  the  owner  of  a  fee  of  a  highway :  Brown  v.  Galley,  Hill  &  Den.  308  ;  Hall 
V.  M'Leod,  2  Mete.  (Ky.)  98.  So  a  license  to  flow  lands:  French  v.  Owen,  2 
Wis.  250.  So  a  right  to  maintain  a  dam  on  the  land  of  another:  Moulton  v. 
Faugh t,  41  Me.  298 ;  Trammell  v.  Trammell,  11  Rich.  471.  No  deed  or  other 
writing  is  necessary  to  convey  the  interest  of  the  owner  of  a  building  stand- 
ing on  another's  land :  Keyser  v.  School  District,  35  N.  H.  477.  A  license  to 
insert  beams  in  the  wall  of  a  house  is  not  within  the  statute :  McLarney  v. 
Tettigrew,  3  E.  D.  Sm.  111.  So  an  agreement  to  take  a  certain  annual  compen- 
sation for  damages  occasioned  by  flowing  land  by  a  mill-dam :  Short  v.  Wood- 
■ward,  13  Gray,  86.  So  the  grant  of  a  right  to  float  logs  on  a  stream :  Rhodes 
r.  Otis,  33  Ala.  578. — s. 

137 


l'J3  THE   STATUTE   OF    FRAUDS.  [lECT.  III. 

fendant  a  growing  crop  of  potatoes,  this  was  decided  not 
to  be  a  sale  of  any  interest  in  or  concerning  land.  It 
was  contended,  that,  as  the  potatoes  were  deriving  nour- 
ishment and  support  from  tlie  soil,  and  would  have 
passed  as  part  of  tlie  land  by  a  conveyance  of  it,  an  in- 
terest in  them  must  at  all  events  be  taken  to  concern 

land  ;  and  *great  reliance  was  placed  on  the  de- 
^  ^  cision  in  Crosby  v.  Wadsworth,  which  I  have  al- 
ready cited ;  where  a  growing  crop  of  grass  was  sold 
and  was  to  be  mowed  by  the  vendee,  and  the  sale  was 
held  to  fall  within  the  statute,  and  to  require  a  writing. 
However  the  Court  held  that  that  case  was  distinguish- 
able. "Although,"  said  Mr.  Justice  Holroyd,  "  the  ven- 
dee might  have  had  an  incidental  right  by  virtue  of  his 
contract  to  some  benefit  from  the  land  while  the  potatoes 
were  arriving  at  maturity,  yet  I  think  he  had  not  an  in- 
terest in  the  land  within  the  meaning  of  this  statute : 
he  clearly  had  no  interest  so  as  to  entitle  him  to  the 
possession  for  any  period,  however  limited,  for  he  was 
not  to  raise  the  potatoes.  Besides,  this  is  not  a  contract 
for  the  sale  of  the  produce  of  any  specific  part  of  the 
land,  but  of  the  produce  of  a  cover  of  land.  The  plain- 
tiff did  not  acquire  by  the  contract  any  interest  in  any 
specific  portion  of  the  land ;  the  contract  only  binds  the 
vendor  to  sell  and  deliver  the  potatoes  at  a  future  time 
at  the  request  of  the  buyer,  and  he  was  to  take  them 
away." 

With  regard  to  this  case,  it  is  worth  while  to  observe, 
that  though,  according  to  the  decision  of  the  Court,  the 
contract  did  not  fall  within  the  4th  section,  as  the  sale 
of  an  interest  in  or  concerning  lands,  yet  it  would  clearly 
fall  within  the  17th,  to  which,  before  the  conclusion  of 
these  Lectures,  I  shall  have  occasion  to  advert,  as  being 

a  sale  of  *goods  and  chattels ;  but  no  point  arose 
•-        -J    upon  that  section,  because  one  shilling  had  been 
138 


LECT.  III.]       CONTKACTS  FOR  THE  SALE  OF  LANDS.         125 

paid  as  earnest  money,  which  is  one  of  the  modes  of 
satisfying  the  provisions  of  the  17th  section. 

The  result  of  these  cases,  and  of  the  many  others 
which  have  been  decided  on  the  subject,  is  thus  stated 
in  Williams'  Saunders  ir)  :  It  appears  to  be  now  settled, 
that,  with  respect  to  emblements  or  fructus  industriales 
(?.  e.,  the  corn  and  other  growth  of  the  earth,  which  are 
produced,  not  spontaneously,  but  l)y  labour  and  indus- 
try), a  contract  for  the  sale  of  them  while  growing, 
whether  they  are  in  a  state  of  maturity,  or  whether  they 
have  still  to  derive  nutriment  from  the  land  in  order  to 
bring  them  to  that  state,  is  not  a  contract  for  the  sale  of 
any  interest  in  land,  but  merely  for  the  sale  of  goods : 
Evans  v.  Koberts  (.s) ;  Sainsbury  v.  Mathews  {t).  And 
it  will  make  no  difference  whether  they  are  to  be  reaped 
or  dug  up  by  the  buyer  or  by  the  seller :  Jones  v. 
Flint  {u)}     The  true  question  is,  whether,  in  order  to 

(r)  Duppa  V.  Mayo,  1  Wms.  Saund.  277  c.  n  (/).  A  similar  and  very  clear 
view  of  this  subject  is  also  taken  by  Lord  St.  Leonards — ^see  Concise  View  of 
Law  of  V.  &  P.  75,  ed.  18.51. 

(s)  5  B.  &  C.  (11  E.  C.  L.  E.)  829. 

[t)  4  M.  &  W.  343. 

(m)  10  A.  &  E.  (37  E.  C.  L.  E.)  753. 

^  In  Evans  v.  Eoberts  (which  was  approved  in  Dnnne  v.  Ferguson,  1  Hayes, 
Exch.,  542,  where  is  an  able  opinion  by  Joy,  Ch.  Baron),  the  case  of  Emmer- 
son  V.  Heelis,  2  Taunt.  38,  was  virtually  overruled,  and  Waddington  v.  Bristow, 
2  B.  &  P  452,  endeavoured  to  be  explained.  These  cases  decided  that  a  sale  of 
growing  turnips  and  hops  was  within  the  fourth  section  of  the  statute.  In 
Eodwell  V.  Phillips,  9  M.  &  W.  501,  Lord  Abinger  suggested  that  the  differ- 
ence appeared  to  be  between  annual  productions  raised  by  the  labour  of  man, 
and  the  annual  productions  of  nature,  not  referable  to  the  industry  of  man, 
except  at  the  period  when  they  were  first  planted ;  which,  together  with  the 
disapprobation  expressed  of  Waddington  v.  Bristow,  supra,  would  seem  to  de- 
termine that  an  annual  crop  is  not  within  the  fourth  section  of  the  statute ; 
and  it  seems  to  be  generally  held,  on  this  side  of  the  Atlantic,  that  such  a  crop 
is  personal  property,  and  as  such  can  be  sold  by  the  owner  or  taken  in  ex- 
ecution :  Newcomb  v.  Eayner,  2  Johns.  430  n. ;  Whipple  v.  Foot,  lb.  418 ; 
Stewart  v.  Doughty,  9  lb.  108 ;  Austin  v.  Sawyer,  9  Cow.  39 ;  Stambaugh  v. 
Yeates,  2  Eawle,  161;  Myers  i'.  White,  1  lb.  356;  Bank  of  Pennsylvania  f. 
Wise,  3  Watts,  406 ;  Penhallow  v.  Dwight,  7  Mass.  34 ;  Cutler  v.  Pope,  13  Me. 

139 


125  THE   STATUTE    OF   FRAUDS.  [lECT.  III. 

effectuate  the  intention  of  the  parties,  it  be  necessary  to 
give  the  buyer  an  interest  in  the  land,  or  whether  an 


377  ;  Craddock  v.  Riddlesbarger,  2  Dana,  205 ;  Brittain  v.  McKay,  1  Ired.  265 ; 
Green  v.  Armstrong,  1  Den.  556 ;  though,  if  not  severed,  it  would  pass  by  a 
conveyance  or  devise  of  the  land :  Bank  of  Pennsylvania  v.  Wise,  3  Watts,  406  ; 
SalUide  v.  James,  6  Pa.  St.  144 ;  Bear  v.  Bitzer,  16  Pa.  St.  175 ;  Groft'  v.  Levan, 
lb.  179 ;  and  in  the  last  two  cases  it  was  suggested  that  the  reason  why  a  pre- 
vious sale  of  the  grain  would  defeat  the  right  of  a  subsequent  purchaser  of  the 
land  was  because  such  sale  was  an  implied  severence  of  the  grain. 

The  weight  of  authority  would  also  seem  to  determine  that  trees,  sold  as 
timber,  and  to  be  presently  cut  and  delivered,  or  trees  and  j^lants  growing  in  a 
nursery,  to  be  presently  transplanted,  are  also  personal  property :  Anon  ,  Ld. 
Kaym.  182;  Smith  w.  Surnam,  .sw^^ra;  Erskine  v.  Plummer,  7  Me.  447  ;  Miller  v. 
Baker,  1  Mete.  27  ;  Whitmarsh  v.  Walker,  lb.  313 ;  Claflin  v.  Carpenter,  4  lb. 
580  ;  Yale  v.  Seely,  15  Vt.  221.  But  when  the  property  in  the  trees  is  not  to 
pass  until  they  be  severed,  or  if  time  is  to  be  allowed  for  them  to  reach  ma- 
turity, it  would  seem  that  the  sale  is  one  of  an  interest  in  land,  and  not  of  a 
chattel :  Putney  v.  Day,  6  N.  H.  430 ;  Green  v.  Armstrong,  1  Den.  550 ;  Pierre- 
pont  V.  Barnard,  5  Barb.  364.  Manure  has  been  held  to  be  part  of  the  realty, 
whether  heaped  in  a  barnyard  or  spread  upon  the  ground :  Wetherbee  v.  Ellison, 
19  Vt.  379. 

It  may  be  here  remarked,  that  even  if  the  contracts  referred  to 'do  not  fall 
within  the  fourth  section  of  the  statute,  because  not  relating  to  an  interest  in 
land,  they  must  necessarily  fall  within  the  seventeenth  section,  because  they 
relate  to  chattels.  Moreover,  if  the  contract  is  an  entire  one,  as  for  the  sale 
of  the  realty  with  the  crops  growing  upon  it,  a  court  has  no  right  to  appor- 
tion it ;  and  if  the  sale  of  the  realty  be  avoided  by  this  statute,  that  of  the 
personalty  will  also  fall :  Thayer  v.  Rock,  13  Wend.  53;  Loomis  v.  Newhall,  15 
Pick.  166.— R. 

A  verbal  contract  to  pay  for  improvements  on  land,  held  adversely  to  the 
promisor,  in  considcation  that  the  tenant  would  attorn  to  him  and  pay  him 
rent  for  his  unexpired  term,  is  not  within  the  statute :  Cassill  v.  Collins,  23 
Ala.  676.  A  sale  of  growing  timber,  with  liberty  to  enter,  cut,  and  carry  it 
away,  without  limitation  of  time,  is  an  interest  in  land  within  the  Statute  of 
Frauds:  Buck  v.  Pickwell,  27  Vt.  157;  Yeakle  v.  Jacob,  33  Pa.  St.  376; 
M'Gregor  v.  Brown,  10  N.  Y.  114;  Harrell  v.  Miller,  35  Miss.  700;  Hutchins 
V.  King,  1  Wall.  53.  A  sale  of  standing  trees,  in  contemplation  of  their  im- 
mediate separation  from  the  soil,  is  a  constructive  severance  of  them.  It  is 
distinguished  from  the  case  of  a  contract  conferring  an  exclusive  right  to  the 
land  for  a  time,  for  the  purpose  of  making  a  profit  out  of  the  growth  upon  it : 
Byassee  v.  Reese,  4  Mete.  (Ky.)  372.  Crops  grown  and  ready  to  be  cut  are 
chattels,  and  will  pass  by  parol :  Bryant  v.  Crosby,  40  Me.  9  ;  even  before  their 
maturity :  Bricker  v.  Hughes,  4  Ind.  146 ;  Sherry  v.  Picker,  10  lb.  375  ;  Bull 
V.  Giiswold,  19  111.  631 ;  Matlock  v.  Fry,  15  Ind.  483 ;  Frank  v.  Harrington,  36 
Barb.  415;  Marshall  v.  Ferguson,  23  Cal.  65.  A.  agreed  to  sell  and  deliver  to 
B.  aU  the  broom  corn  that  should  be  raised  in  1853,  on  twenty -five  acres  of 

140 


LECT.  III.]       COKTKACTS  FOR  THE  SALE  OF  LANDS.         125 

easement  of  tlie  right  to  enter  the  land  for  the  purpose 
of  harvesting  and  carrying  them  away  is  all  that  was 
intended  to  be  granted  '•"'to  the  buyer.  But  with 
respect  to  grass,  which,  as  being  the  natural  pro-  •-  -  J 
duce  of  the  land,  is  said  to  be  not  distinguishable 
from  the  land  itself  in  legal  contemplation  until  actual 
severance,  the  decision  of  Crosby  v.  Wadsworth  appears 
to  be  still  adhered  to,  viz.,  that  the  purchaser  of  a  crop 
of  mowing  grass,  unrij^e,  and  which  he  is  to  cut,  takes 
an  exclusive  interest  in  the  land  before  severance ;  and 
therefore  the  sale  is  a  sale  of  an  interest  in  land  within 
the  statute  {x).  So  it  has  been  held,  that  the  sale  of 
growing  underwood  to  be  cut  by  the  purchaser  confers 
an  interest  in  land  within  the  statute  {y).  The  same 
has  been  held  as  to  an  agreement  for  the  sale  of  grow- 
ing fruit  [z) .  But  where  the  owner  of  trees  growing  on 
his  land  (but  after  two  had  been  cut  down)  agrees  with 
another  while  the  rest  are  standing  to  sell  him  the  tim- 
ber, to  be  cut  by  the  vendor,  at  so  much  per  foot,  this 
is  a  contract  merely  for  the  sale  of  goods  (a).  The 
timber  was  to  be  made  a  chattel  for  the  seller  (b).  And, 
per  Liitledale^  J.,  even  if  the  contract  were  for  the  sale 
of  the  trees,  with  a  specific  liberty  to  the  vendee  to  enter 
the  land  to  cut  them,  this  would  not  give  him  an  in- 

(2)  Carrington  v.  Roots,  2  M.  &  W.  248, 

(2/)  Scorell  V.  Boxall,  1  Y.  &  J.  396;  Teal  v.  Auty,  2  B.  &  B.  (6E.  C.  L.R.) 
99. 

(2)  Rodwell  V.  Phillips,  9  M.  &  W.  501. 

(a)  Smith  v.  Surman,  9  B.  &  C.  (17  E.  C.  L.  R.)  561. 

(6)  Lord  Falmouth  v.  Thomas,  per  Bailey,  B.,  1  C.  &  M.  (41  E.  C.  L.  R.)  105. 


Uiid— held  within  the  statute :  Bowman  v.  Conn,  8  Ind.  58.  Coals  and  the  right 
to  dig  them  is  an  interest  in  land  :  Lear  v.  Chouteau,  23  111.  39.  As  to  grow- 
ing timber  see  Hutchings  v.  King,  1  Wall.  53  ;  Byassee  v.  Reese,  4  Mete.  (Ky.) 
372 ;  Kingsley  v.  Holbrook,  45  N.  H.  313 ;  Huff  v.  McCauley,  53  Pa.  St.  206. 
As  to  growing  crops  see  Marshall  v.  Ferguson,  23  Cal.  65;  Webster  v.  Zielly, 
52  Barb.  482.— s. 

141 


126  THE   STATUTE   OF    FRAUDS.  [lECT.  III. 

terest  in  the  land  within  the  '^meanin<r  of  the 


•to 


r*i27i 

*-  -"  statute  (c)}  Thus,  too,  a  sale  of  growing  tim- 
ber to  be  cut  down  by  the  purchaser  and  taken  away  by 
him  as  soon  as  possible  is  not  a  sale  of  an  interest  in 
land  within  the  meaning  of  this  section,  but  of  goods 
within  the  meaning  of  the  17th  section  (d).  In  another 
ease  on  this  subject  where  the  plaintiff  and  defendant 
orally  agreed  (in  August)  that  the  defendant  should 
give  £45  for  the  crop  of  corn  on  the  plaintiff's  land, 
and  the  profit  of  the  stubble  afterwards,  that  the  plain- 
tijff  was  to  have  liberty  for  his  cattle  to  run  with  the 
defendant's,  and  that  the  defendant  was  also  to  have 
some  potatoes  growing  on  the  land  and  whatever  lay 
grass  was  in  the  fields,  and  the  defendant  was  ta  harvest 
the  corn  and  dig  up  the  potatoes,  and  the  plaintiff  was 
to  pay  the  tithe ;  it  was  held,  that  it  did  not  appear  to 
be  the  intention  of  the  parties  to  contract  for  any  interest 
in  land,  and  the  case  was  not,  therefore,  within  the 
statute,  but  a  sale  of  goods  as  to  all  but  the  lay  grass, 
and  as  to  that  a  contract  for  the  agistment  of  the  de- 
fendant's cattle  {e). 

(c)  9  B.  &  C.  (17  E.  C.  L.  E.)  573 ;  Evans  v.  Roberts,  5  B.  &  C.  (11  E.  C.  L. 
E.)  829. 

(d)  Marshall  v.  Green,  1  C.  P.  D.  35;  45  L.  J.  (Q.  B.,  etc.)  153. 

(e)  Jones  v.  Flint,  10  A.  &  E.  (37  E.  C.  L.  E.)  753  ;  Duppa  v.  Mayo,  1  Wms. 
Saund.  277  c,  n.  (/). 

^  In  Brown  v.  Morris,  83  N.  C.  251,  the  parties  entered  into  a  parol  agree- 
ment by  which  one  A  was  to  make  bricks  upon  the  land  of  tlie  pkiintiff,  the 
property  in  the  bricks  to  remain  in  the  plaintiff  until  he  was  paid  for  the  clay 
and  wood  used  in  their  manufacture.  A  sold  the  bricks  to  defendant,  who 
was  then  sued  for  the  price  by  the  plaintiff.  He  endeavoured  to  defend  on  the 
ground  inter  alia  that  the  parol  contract  between  the  plaintiff  and  his  vendor 
was  void.  But  the  Court  held  it  valid,  and  Smith,  C.  J.,  said :  "  The  land  on 
and  from  which  the  bricks  were  manufactured  belonged  to  the  plaintiff,  and 
it  was  perfectly  competent  for  him  to  agree  that  the  property  should  remain 
unchanged  and  follow  the  material  into  the  manufactured  article.  The 
Statute  of  Frauds  has  no  application  to  a  contract  concerning  personalty, 
which  the  brick  became,  and  wliicli  but  leaves  the  title  where  it  was,  in  the 
owner  of  the  soil." 
142 


LECT.  III.]       CONTRACTS  FOR  THE  SALE  OF  LANDS.         127 

Upon  very  similar  reasoning,  when  a  tenant  having 
a  right  to  remove  fixtures,  left  them  in  the  house  upon 
a  parol  agreement  with  the  landlord  that  he  should  take 
them  at  a  valuation,  the  Court  *were  quite  puic^cn 
satisfied  that  this  was  not  a  sale  of  any  in- 
terest in  land  {/)} 

Neither  does  an  agreement  for  board  and  lodging 
amount  to  a  contract  for  an  interest  in  land ;  and  a 
person  having  agreed  with  a  boarding-house  keeper  for 
board  and  lodging  for  himself  and  servant,  and  accom- 
modation for  a  horse,  for  £200  a  year,  and  having 
afterwards  refused  to  enter  on  the  occupation,  was  held 
liable  to  an  action,  although  the  whole  that  passed  be- 
tween them  was  by  word  of  mouth.  The  agreement 
was  merely  that  the  proposed  lodger  should  become 
and  be  received  as  an  inmate  in  the  house  and 
fiimily  (g). 

But  an  agreement  to  occupy  lodgings  at  a  yearly 
rent,  the  occupation  to  commence  at  a  future  day,  is 
an  agreement  for  an  interest  in  land  within  the  4th 
section  {h). 

And  such  also  is  an  agreement,  that,  if  one  will  take 
possession  of  a  house  and  become  tenant  upon  its  being 
properly  furnished,  the  other  will  furnish  it  properly  {i). 
So  also  an  agreement  between  one  who  desired  to  obtain 
the  transfer  of  the  lease  of  a  public-house  and  a  public- 
house  broker  who  had  no   interest  in  the  public-house 

(/)  Ilallen  v.  Eunder,  1  C.  M.  &  R.  266;  Lee  v.  Gaskell,  1  Q.  B.  D.  700; 
45  L.  J.  (Q.  B.,  etc.)  540. 

ig)  Wright  v.  Stavert,  29  L.  J.  (Q.  B.)  16L  " 

(A)  Inman  v.  Stamp,  1  Stark.  N.  P.  C.  (2  E.  C.  L.  E.)  12. 

{i)  Mechelen  ■;;.  Wallace,  7  A.  &  E.  (34  E.  C.  L.  E.)  49;  Vaughan  v.  Han- 
cock, 3  C.  B.  (54  E.  C.  L.  R.)  766. 

^  As  to  what  constitute  fixtures,  discussion  of  which  would  be  out  of  place 
here,  the  student  is  referred  to  the  case  of  Elwes  v.  Mawe,  2  Smitli's  L.  C. 
(8th  Am.  ed.)  191  and  the  notes. 

143 


128  THE    STATUTE    OF    FRAUDS.  [lECT.  III. 

P19Q1    ^li'^^self,  that  the  *latter  would  procure  him  the 
lease,  has  been  held  to  be  a  contract  or  sale  of 
an  interest  in  land  within  the  4th  section  {k). 

Such  also  was  considered  an  agreement  on  the  sale  of 
a  milk-w^alk  for  £80,  in  which  it  was  agreed  that  the 
purchaser  should  go  into  and  occupy  the  premises  of 
which  the  vendor  was  tenant,  and  should  be  tenant  of 
them  from  Midsummer  then  past,  and  should  pay  the 
rent,  rates,  and  taxes.  The  defendant  entered,  but  find- 
ing the  business  not  so  extensive  as  he  expected,  re- 
fused to  pay  the  whole  of  the  £80.  The  Court  con- 
sidered that  the  plaintiff  agreed  to  consign  his  interest 
in  the  premises,  such  as  it  was,  to  the  defendant,  and  the 
latter  agreed  to  pay  the  rent,  rates,  and  taxes,  from  the 
last  quarter,  and  that  it  was,  therefore,  expressly  within 
the  statute  (/). 

The  same  conclusion  has  been  come  to  where  one 
entered  into  an  agreement  with  another  to  relinquish, 
and  give  possession  to  him  of  a  furnished  house  for  the 
residue  of  a  term  which  the  former  had  therein,  in  con- 
sideration of  a  sum  of  money  to  be  paid  by  the  latter 
for  certain  repairs  to  be  done  to  the  house.  It  was 
considered  that  the  contract  was  not  merely  that  one 
side  should  repair  and  relinquish  possession,  and  the 
other  pay  the  money  for  the  repairs,  but  that  the  re- 
r-5:-i  oAi  linquishment  beino;  *for  the  remainder  of  a  term, 
an  assignment  was  contem23lated,  which  was 
clearly  an  interest  in  land  (m).  The  law  is  the  same 
whether  the  interest  agreed  to  be  assigned  or  parted  with 
be  legal  or  equitable  {n).  And  the  same  rule  that  the 
contract  cannot  be  enforced  unless  in  writing  applies,  al- 

(k)  Horsey  v.  Graham,  L.  E.  5  C.  P.  9 ;  39  L.  J.  (C.  P.)  58. 
( I)  Smart  v.  Harding,  24  L.  J.  (C.  P.)  76 ;  15  C.  B.  (80  E.  C.  L.  E.)  652. 
(m)  Buttemere  v.  Hayes,  5  M.  &  W.  456 ;  Cocking  v.  Ward;  1  C.  B.  (60  E. 
C.  L.  E.)  858. 

(n)  Kelly  v.  Webster,  21  L.  J.  (C.  P.)  163 ;  12  C.  B.  (74  E.  C.  L.  E.)  283. 
144 


LECT.  III.]       CONTRACTS  FOR  THE  SALE  OF  LANDS.         130 

though  the  consideration  for  the  defendant's  part  of  the 
contract  has  been  performed,  and  nothing  remains  to  be 
done  but  the  payment  of  the  money  (o). 

But  when  a  contract  was  that,  in  consideration  that 
the  plaintiff  would  advance  £2000  upon  the  security  of 
a  mortgage  of  certain  land  upon  the  defendant  making 
out  a  good  title  to  mortgage  it,  the  defendant  promised 
to  pay  him  the  expenses  to  wliich  he  might  be  subjected, 
in  case  the  loan  should  go  off  by  reason  of  the  defend- 
ant changing  his  views  or  of  the  defectiveness  of  the  de- 
fendant's title,  the  Court  of  Exchequer  clearly  held 
that  the  contract  merely  related  to  the  investigation  of 
the  title,  and  did  not  relate  to  any  interest  in  land  (p). 

A  promise  founded  on  a  valuable  consideration  to 
make  a  will  leaving  an  interest  in   land  is   within    the 
4th  section,  and  cannot  be  enforced  against  *the    r^;..  oi-i 
estate   of  the   promiser   in   the   absence   of  a 
writing  (q). 

Again,  a  contract  professing  to  give  a  right  to  go 
over  certain  land  and  kill  game  there,  and  to  take 
away  a  fourth  of  the  game  shot,  is  a  contract  for  a 
profit  a  prendre,  and,  therefore,  for  an  interest  in  land, 
and  so  must  be  in  writing  to  satisfy  this  section  (r). 

In  all  these  cases,  however,  the  observation  applies 
which  I  have  made  in  the  former  Lecture  with  refer- 
ence to  cases  falling  within  this  section  in  general.  The 
contract,  even  if  by  mere  words,  is  not  void,  but  merely 
incapable  of  being  enforced  by  action  {s).     And  there- 

(o)  Cocking  v.  Ward,  swpra  ;  Kelly  v.  Webster,  supra.  See  ante,  p.  *99,  as  to 
the  effect  of  part  performance,  according  to  the  rules  of  Equity. 

(p)  Jeakes  v.  White,  21  L.  J.  (Ex.)  265;  6  Ex.  873. 

iq)  Alderson  v.  Maddison,  5  Ex.  D.  293 ;  49  L.  J.  (Q.  B.)  801 ;  7  Q.  B.  D. 
174;  50  L.  J.  (Q.  B.)  466;  Maddison  v.  Alderson,  8  App.  Cas.  467  ;  52  L.  J. 
(Q  B.)  737  ;  Humphreys  v.  Green,  10  Q.  B.  D.  148 ;  52  L.  J.  (Q.  B.)  140. 

(r)  Webber  v.  Lee,  9  Q.  B.  D.  315;  51  L.  .J.  (Q.  B.)  174,  485. 

(«)  Leroux  v.  Brown,  22  L.  J.  (C.  P.)  1;  12  C.  B.  (74  E.  C.  L.  R.)  801. 
See  Lay  cock  v.  Pickles,  23  L.  J.  (Q.  B.j  43. 

10  145 


131  THE   STATUTE   OF   FRAUDS.  [lECT.  IIL 

fore  it  has  been  held,  that,  if  it  actually  has  been  exe- 
cuted, for  instance,  in  the  case  of  a  sale  of  growing 
crops,  by  the  vendee's  reaping  them  and  taking  them 
away,  an  action  will  lie  to  recover  the  price  as  for  goods 
sold  and  delivered  (t). 

A  curious  point  has  been  decided  upon  this  section 
r*i  ^o~\  "^it^^  reference  to  a  parol  demise  of  land.  *Sucli 
a  demise,  if  for  not  more  than  three  years,  is 
good  within  the  Statute  of  Frauds,  the  1st  section  of 
which  enacts,  that  "a//  leases,  estates,  interests  of  free- 
hold, or  terras  of  years,  or  any  uncertain  interest  of,  in, 
to,  or  out  of  any  messuages,  manors,  lands,  tenements,  or 
hereditaments,  made  or  created  by  livery  and  seisin 
only,  or  by  parol,  and  not  put  in  writing,  and  siff7ied 
by  the  parties  so  making  or  creating  the  same,  or  their 
agents  thereunto  lawfully  authorized  by  writing,  shall 
liave  the  force  and  effect  of  leases  or  estates  at  will  only." 
The  2d  section  excepts  "  all  leases  not  exceeding  the 
term  of  three  years  from  the  making  thereof,  where- 
upon the  rent  reserved  to  tlie  landlord  during  such 
term  shall  amount  unto  tw^o-third  parts  at  tlie  least  of 
the  full  improved  value  of  the  thing  demised  "  {u)} 
But  an  agreement  for  such  a  lease  falls,  not  within  the 

(t)  Parker  v.  Staniland,   11   East,   362;    Poulter  v.  Killingbeck,  1  B.  &  P. 
397.     And  see  the  judgment  in  Teal  v.  Auty,  2  B.  &  B.  (6  E.  C.  L.  R.)  99. 
(u)  29  Car.  II.  c.  3,  ss.  1,  2.     See  8  &  9  Vict.  c.  106,  s.  3,  ante,  p.  *o7. 

*  By  the  Massachusetts  statute,  all  parol  leases  (witliout  exception  as  to  du- 
ration) have  the  effect  of  leases  at  wil)  only:  Ellis r.  Paige,  1  Pick.  43;  Hing- 
liam  V.  Sprague,  15  lb.  102;  liollis  v.  Pool,  3  Mete.  551 ;  Kelly  r.  Waite,  12 
lb.  300.  So  in  Maine:  Little  v.  Pallister,  3  Me.  15;  Davis  v.  Thompson,  13 
lb.  214.  By  the  New  York  Revised  Statutes  (2  Rev.  St.  p.  194),  no  estate  or 
interest  in  land  other  than  leases  for  a  term  not  exceeding  one  year  can  be 
created,  unless  by  operation  of  law  or  by  writing.  In  Connecticut  (statute  ol 
1828)  such  leases  are  invalid,  except  as  against  the  grantor.  The  Penn- 
sylvania statute  (1772)  is,  as  to  this,  exactly  copied  from  that  of  29  Car.  II; 
omitting,  however,  the  part  as  to  the  reservation  of  rent.  This  part,  however,  it 
will  be  perceived,  was  evidently  inserted  in  the  English  statute  as  a  guard 
against  perjury,  in  supporting  a  parol  lease  for  three  years  or  kss. — B. 

14G 


LECT.  III.]       CONTRACTS  FOE  THE  SALE  OF  LANDS.         132 

1st,  but  within  the  4th  section ;  for  it  is  an  agreement 
for  an  interest  in  lands ;  and,  therefore,  though  a  lease 
for  a  year  would  be  perfectly  good  though  made  verbally, 
an  agreement  [so  made]  for  such  a  lease  cannot  be  en- 
forced. That  was  the  point  decided  in  Edge  v.  Straf- 
ford (x)  :  "  It  may  be  said,"  said  Bayley,  B.,  delivering 
the  judgment  of  the  Court  in  that  case,  "  that  it  is 
strange  that  the  2d  section  of  the  statute  has  made  a 
lease  for  less  than  three  years  from  the  making  valid, 

and  *yet  that  no  action  shall  be  maintainable    ^.    ^  _, 

•  ...  r  1331 

upon  it  until  it  is  made  effectual  as  a  lease  by    ^        -■ 

the  entry  of  the  lessee.  But,  first,  the  legislature  miglit 
intend  to  make  a  distinction  between  those  cases  in 
which  the  complaining  2)arty  Avas  contented  to  confine 
himself  to  its  operation  as  a  lease,  and  sought  nothing 
more  than  as  a  lease  it  would  give  him,  and  those  in 
which  he  went  further,  and  founded  upon  it  a  claim  for 
damages,  which  might  far  exceed  what  he  could  claim 
under  it  in  the  character  of  a  lease ;  or,  secondly,  thi. 
distinction  might  not  have  been  contemplated,  but  may 
be  the  result  of  the  true  construction  of  the  Statute  of 
Frauds.  The  first  section  of  that  statute  provides — that 
all  leases,  estates,  interests  of  freehold,  or  terms  of  years, 
or  any  uncertain  interest  in  lands,  made  by  livery  and 
seisin  only,  or  by  parol,  and  not  put  in  writing,  &Q.., 
shall  have  the  force  and  effect  of  leases  or  estates  at  will 
only  ;  and  excepts,  nevertheless,  all  leases  not  exceed- 
ing three  years  from  the  making  thereof,  whereupon 
the  rent  reserved  shall  amount  to  two-thirds  of  the  full 
improved  value.  The  4th  section  enacts,  that  no  'action 
shall  be  brought  whereby  to  charge  the  defendant  upon 
any  contract  or  sale  of  lands,  or  any  interest  in  or  con- 
cerning them,  unless  the  agreement  on  which  such 
action  shall  be  brouglit,  or  some  memorandum  thereof, 

(x)  1  C.  &  J.  391 J  1  Tvr.  293, 

147 


133  THE   STATUTE   OF   FEAUDS.  [lECT.  III. 

be  in  writing,'  Is,  then,  the  agreement  on  winch  this 
action  is  brought  *a  contract  of  an  interest  in  lands'? 
*Inman  v.  Stamp  {y)  says  distinctly  it  is :  un- 
L  -I  less  that  case  be  successfully  impeached,  it  must 
govern  the  present."  ^ 

The  last  case  provided  for  is  that  of  any  agreement 
that  is  not  to  be  performed  within  the  space  of  one  year 
from  the  making  thereof  It  has  been  decided,  that  the 
agreements  meant  by  this  section  are  not  agreements 
which  may  or  may  not  happen  to  be  performed  within 
a  year,  but  agreements  which,  on  the  face  of  them,  con- 

{y)  1  Stark.  (2  E.  C.  L.  E.)  12. 

1  "  The  effect  then,"  said  Baylev,  B.,  in  Edge  v.  Strafford,  "  of  the  Statute 
of  Frauds,  so  far  as  it  applies  to  parol  leases,  not  exceeding  three  years  from 
the  making,  is  this,  that  the  leases  are  valid,  and  that  whatever  remedy  cau 
be  had  upon  them  in  their  character  of  leases,  may  bs  resorted  to ;  but  they 
do  not  confer  the  right  to  sue  the  lessee  for  damages  for  not  taking  pos- 
session." 

Although  the  statute  enacts  that  all  leases  by  parol  for  more  than  three 
years  shall  have  the  effect  of  leases  at  will  only,  yet  it  has  been  held,  on 
both  sides  of  the  Atlantic,  that  occupation  and  payment  of  rent  under  such 
a  lease,  will  create  a  tenancy  from  year  to  year:  Clayton  v.  Blakey,  8  T.  E.  3. 
And  although  the  parol  lease  for  more  than  three  years  is  void  under  the 
statute,  as  to  the  duraiion  of  the  term,  yet  the  contract  will  regulate  the  terms 
of  the  holding  in  other  respects,  as,  for  instance,  the  amount  of  rent,  &c. :  Pe 
Medina  v.  Poison,  1  Holt,  N.  P.  E.  (3  E.  C.  L.  E.)  47 ;  Eichardson  r.  Gifford, 
1  A.  &  E.  (28  E.  C.  L.  E.)  52 ;  Beale  v.  Sanders,  5  Scott,  58 ;  Schuyler  v. 
Leggett,  2  Cow.  660 ;  Edwards  v.  Clemans,  4  Wend.  480 ;  Prindle  v.  Ander- 
son, 19  lb.  391 ;  HoUis  i;.  Pool,  3  Mete.  350;  M'Dowell  v.  Simpson,  3  Watts, 
135.  But  under  the  statute  as  expressed  in  Maine  and  Massachusetts,  as  all 
leases,  unless  they  be  written,  are  leases  at  will  only,  it  has  there  been  held 
that  a  tenancy  created  by  parol,  cannot,  by  occupation  and  payment  of  rent, 
be  subsequently  enlarged  into  a  tenancy  from  year  to  year :  Ellis  v.  Paige,  1 
Pick.  43;  Hingham  v.  Sprague,  15  lb.  102;  Kelly  r-.  Waite,  12  Mete.  300; 
Little  V.  Pallister,  3  Me.  15;  Davis  v.  Thompson,  13  lb.  214. 

A  recent  English  statute  (8  &  9  Vict.  c.  106,  ^  3)  has  enacted  that  every 
lease  required  by  law  to  be  in  writing,  of  any  tenements  or  hereditaments, 
made  after  the  1st  of  October  1845,  shall  be  void  at  law  unless  made  by  deed; 
but  Mr.  Chitty  has  remarked  of  this,  that  it  would  probably  receive  the  same 
construction  as  the  section  above  referred  to,  as  it  would  seem  not  unreason- 
able to  hold  that  the  provisions  of  the  statute  Avould  be  satisfied  by  restricting 
its  effect  to  the  avoidance  of  the  lease,  as  a  lease  simply  :  Chitty  on  Contracts, 
283,  4th  Eng.  ed.— s. 

148 


LECT.  III.]  YEAR.  134 

template  a  longer  delay  than  a  year  before  their  accom- 
plishment. Peter  v.  Compton  (2),  the  case  usually  cited 
as  establishing  this  distinction,  affords  also  a  very  good 
illustration  of  it.  It  was  an  action  upon  an  agreement, 
in  which  the  defendant  promised  for  one  guinea  to  give 
the  plaintiff  ten  on  the  day  of  his  marriage.  The  case 
was  tried  before  Lord  Holt,  who  reserved  the  question, 
whether  a  writing  was  necessary,  for  the  opinion  of  all 
the  Judges,  a  majority  of  whom  were  of  opinion,  "  that, 
where  the  agreement  is  to  be  performed  upon  a  con- 
tingency, and  it  does  not  appear  within  the  agreement 
that  it  is  to  be  performed  after  the  year,  there  a  note  in 
writing  is  not  necessary,  for  the  contingency  might 
happen  within  the  year ;  but  where  it  appears  by  the 
whole  tenor  of  the  agreement  that  it  is  to  be  performed 
after  the  year,  there  a  note  in  writing  is  necessary,  other- 
wise not."  There  was  a  difference  *of  opin-  r*-|OK-i 
ion  among  the  Judges  in  this  case,  and  it  is  re- 
markable that  Lord  Holt  himself  differed  from  the 
majority.  However,  their  construction  has  been  fre- 
quently adopted  since  that  time.^ 

One  consequence  of  this  section  is,  that  if  a  servant 
be  hired  for  a  year,  and  the  service  is  to  begin  at  a 
future  time,  the  agreement  ought  to  be  in  writing,  since 
it  will   not  be  performed  within  a  year  (a).     On  the 

(2)  Skinner,  353 ;  1  Smith,  L.  C,  8th  ed.  357. 

(a)  Bracegirdle  v.  Heald,  1  B.  &  Aid.  722;  Snelling  v.  Lord  Huntingfield, 
1  Cr.  M.  .t.  R.  20 ;  Giraud  v.  Richmond,  2  C.  B.  (52  E.  C.  L.  R.)  835 ;  LerouJ 
V.  Brown,  22  L.  J.  (C.  P.)  1 ;  12  C.  B.  (74  E.  C.  L.  R.)  801 ;  Britain  v.  Roaa< 

^  A  parol  contract  by  which  a  son  agreed  to  work  for  his  father  while  h« 
lived,  to  be  paid  at  his  death,  was  held  not  void  as  a  contract  not  to  be  per- 
formed within  a  year :  Updike  v.  Ten  Broeck,  32  N.  J.  105.  And  see  also 
Worthy  V.  Jones,  11  Gray,  168 ;  Richardson  v.  Pierce,  7  R.  I.  330;  Scoggin  v, 
Blackwell,  36  Ala.  351;  Marcy  r.  Marcy,  9  Allen,  8;  Berry  v.  Doremus,  30 
N.  J.  398 ;  Doyle  v.  Dixon,  97  Mass.  208 ;  Swift  v.  Swift,  46  Cal.  266 ;  Lari- 
mer  v.  Kelly,  10  Kan.  298;  Riddle  v.  Backus,  38  Iowa,  81 ;  Blair  Land  Co.  v. 
Walker,  39  lb.  406.— s. 

149 


135  THE   STATUTE   OF   FEAUDS.  [lECT.  III. 

other  hand  where,  in  consideration  that  the  plaintiff 
would  be  and  continue  his  servant  as  long  as  they  should 
both  please,  the  defendant  promised  to  leave  her,  by  his 
last  will,  an  annuity  for  her  life ;  it  was  considered  that 
the  statute  did  not  apply,  it  not  being  expressly  and 
specifically  agreed  that  the  agreement  should  not  be  f)er- 
formed  within  the  year  {b).  In  Wells  v.  Horton  (c), 
which  was  a  promise  by  a  testator  that  his  executor 
should,  at  his  death,  pay  the  plaintiff  £10,000,  it  was 
held  that  no  writing  was  required  to  j)rove  it ;  and  Best, 
C.  J.,  said,  the  plain  meaning  of  the  words  of  the 
statute  "  is  confined  to  contracts  which  by  agreement  are 
not  to  be  carried  into  execution  within  a  year,  and  does 
not  extend  to  such  as  may  by  circumstances  be  post- 
poned  *beyond  that  period;  otherwise  there  is 
'-  -'  no  contract  which  might  not  fall  within  the  stat- 
ute." Souch  V.  Strawbridge  {d)  was  a  case  in  wdiich  it 
was  proved  that  there  had  been  a  proposal  that  the 
plaintiff  should  keep  an  infant  child  for  the  defendant 
for  one  year,  at  5s.  a  week,  which  he  objected  was  too 
much  for  so  young  a  child ;  and  it  was  then  settled  that 
it  should  remain  with  the  plaintiff  till  the  defendant 
gave  notice  or  should  think  proper.  It  remained  with  the 
plaintiff  more  than  two  years.  The  Court  considered  no 
writing  to  be  necessary  to  prove  the  agreement;  and  J^rle, 
J.,  said,  the  treaty  certainly  did  once  contemplate  the 
endurance  of  the  contract  for  the  child's  maintenance  be- 
yond a  year;  but  the  ultimate  contract  was,  that  the  period 
should  be  as  long  as  the  defendant  should  think  proper. 

ter,  48  L.  J.  (Q.  B.)  362 ;  11  Q.  B.  D.  123.     See  Cawthorn  v.  Cordrey,  13  C.  B. 

(N.  S.)  (106  E.  C.  L.  E.)  406;  32  L.  J.  (C.  P.)  152. 

(b)  Fenton  v.  Eniblers,  3  Burr.  1278. 

(c)  4Bing.  (13  E.G.  L.  E.)  40. 

(d)  2  C.  B.  (52  E.  C.  L.  E.)  808 ;  15  L.  J.  (C.  P.)  170.  This  decision  was 
followed  in  the  similar  case  of  Knowlman  v.  Bluett,  L.  E.  9  Ex.  1,  307  (Ex, 
Ch.) ;  43  L.  J.  (Ex.)  29,  151  (Ex.  Ch.). 

150 


LECT.  III.]  YEAR.  136 

Thus,  also,  it  is  held  that,  where  it  appears  not  to  have 
been  the  intent  of  the  parties  that  the  agreement  sliould 
extend  beyond  a  year,  although  it  might  extend  far  be- 
yond that  time,  it  need  not  be  in  writing;  but  where  it 
appears  to  be  the  intent  of  the  parties  that  the  agree- 
ment shall  not  be  performed  within  one  year  from  the 
making,  it  must  be  in  wiiting,  although  determinable 
upon  a  contingency  within  a  year.     Therefore,  where 
by  the  terms  of  the  contract  it  is  to  last  for  a  longer 
*period  than  a  year,  a  custom  by  which  it  might         ^ 
be  put  an  end  to  by  one  of  the  parties  within    ^        -■ 
that  period  does  not  take  it  out  of  the  operation  of  the 
statute  (e).     In  like  manner  an  undertaking  to  pay  an 
annuity  for  life  must  be  in  writing,  although  it  may 
terminate  by  death  within  a  year  (/).     And  so  a  con- 
tract for  service  for  more  than  a  year,  but  subject  to  de- 
termination within  the  year  on  a  given  event,  is  within 
the  4th  section.     The  circumstance  that  it  is  defeasible 
will  not  make  it  other  than  a  contract  for  more  than  a 
year.     If  it  were  not  so,  contracts  for  any  number  of 
years  might  be  made  by  parol,  provided  they  contained 
a  defeasance  which  might  come  into  operation  before  the 
end  of  the  first  year  {</).     So  an  agreement  on  the  de- 
fendant's part  not  to  set  up  the  trade  of  a  tailor  within 
five  miles  of  D.  during  the  joint  lives  of  himself  and 
the  plaintiff  is  prima  facie  not  to  be  performed  within 
a  year,  and  therefore  within  this  section  of   the  stat- 
ute (h). 

Where,  however,  all  that  is  to  be  done  by  one  party, 
as  the  consideration  for  what  is  to  be  done  by  the  other, 
actually  is  done  within  the  year,  the  statute  does  not 


(c)  Birch  V.  Earl  of  Liverpool,  9  B.  A  C.  (17  E.  C.  L.  R.)  392. 
(/)  Sweet  V.  Lee,  3  M.  &  G.  (40  E.  C.  L.  R.)  452. 
(g)  Dobson  v.  Collis,  1  H.  &  N.  81  ;  2o  L.  J.  (Ex.)  267. 
(h)  Davey  v.  Shannon,  4  Ex.  Div.  81 ;  48  L.  J,  (Q.  B.,  etc.)  459. 

151 


137  THE   STATUTE   OF   FRAUDS.  [lECT.  IIL 

prevent  that  party  suing  the  other  for  the  non-perform- 
ance  of  his  part  of  the  ^contract.  Where  the 
L  -J  one  hag  the  full  benefit  of  the  contract,  the  law 
will  not  permit  the  other  to  withhold  the  consideration. 
As,  where  a  landlord  had  agreed  to  lay  out  £50  on  im- 
proveraents  on  the  premises  demised,  and  the  tenant,  in 
consequence,  had  undertaken  to  pay  £5  a  year  addi- 
tional rent  for  the  remainder  of  his  term,  of  which  there 
were  several  years,  and  the  landlord  laid  out  the  £50 
within  the  year,  he  was  allowed  to  recover  the  additional 
rent,  although  the  agreement  was  not  in  writing  [i)  ;^ 

(i)  Donellan  v.  Reed,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  899 ;  Sonch  v.  StrawLridge, 
2  C.  B.  (52  E.  C.  L.  R.)  808;  Cherry  v.  Heming,  4  Ex.  631.  See  Nunn  v. 
Fabian,  L.  R.  1  Ch.  35  ;  35  L.  J  (Ch.)  140. 

'  It  has  been  held  in  England  that  the  words  in  the  statute  "  not  to  be  per- 
formed," mean  not  to  be  performed  on  either  side,  that  is,  that  an  agreement 
does  not  come  within  the  statute  provided  all  that  is  to  be  done  by  one  of  the 
parties  is  to  be  done  within  a  year :  Donellan  v.  Reed,  3  B.  &  Ad.  (23  E.  C.  L. 
R.)  899.  There  the  defendant,  who  was  the  plaintiff's  tenant  under  a  lease  of 
20  years,  promised,  in  consideration  that  the  latter  would  lay  out  £50  in  alter- 
ations, to  pay  an  additional  £5  annually,  during  the  remainder  of  the  term. 
The  alterations  were  finished  within  the  year,  and  to  an  action  for  the  addi- 
tional £5,  the  defendant  pleaded  that  the  contract  could  not  possibly  be  per- 
formed within  a  year,  and  therefore  ought  to  have  been  written.  But  the 
Court  held  that  as  the  contract  was  entirely  executed  on  one  side  within  the 
year,  and  as  it  was  the  intention  of  the  parties,  founded  on  a  reasonable  ex- 
pectation, that  it  should  be  so,  the  Statute  of  Frauds  did  not  apply.  Mr. 
Smith  has  questioned  the  propriety  of  this  decision  as  being  opposed  to  Peter 
V.  Compton,  both  in  his  notes  to  that  ease,  in  the  Leading  Cases  (vol  i.  p.  614, 
8th  Am.  ed),  and  in  his  "Mercantile  Law"  (p.  440  >,  but  in  the  very  recent 
case  of  Cherry  v.  Heming,  4  Exch.  631,  the  facts  and  the  decisions  were  much 
the  same  as  in  Donellan  v.  Reed,  and  the  Court,  referring  to  the  remarks  of 
Mr.  Smith,  were  of  opinion  that  they  were  not  sufficient  to  induce  them  to 
doubt  the  authority  of  that  case.  On  this  side  of  the  Atlantic  the  construc- 
tion thus  adopted  has  been  followed  in  some  cases :  Holbrook  v.  Armstrong, 
10  Me.  31  ;  Rake  v.  Pope,  7  Ala.  161 ;  Johnson  v.  Watson,  1  Ga.  348  ;  but  re- 
jected in  others :  Broadwell  v.  Getman,  2  Den.  87  ;  Cabot  r.  Haskins,  3  Pick. 
83;  Lockwood  v.  Barnes,  3  Hill,  128.  The  practical  difference  between  these 
classes  of  cases  may  be  thus  explained.  "  It  often  happens,"  as  was  said  in 
Donellan  v.  Reed,  "  in  cases  of  i^arol  sale  of  goods,  that  they  are  not  to  be 
paid  for  in  full  till  after  the  expiration  of  a  longer  time  than  a  year,  and  surely 
the  law  would  not  sanction  a  defence  on  that  ground,  where  the  buyer  h.id  had 
the  full  benefit  of  the  goods  on  his  part."     Under  such  circumstances,  however, 

152 


LECT.  III.]  YEAE.  138 

for  this  enactment  applies  only  to  contracts  not  to  he 
performed  on  either  side  within  the  year.     Therefore, 

it  cannot  be  doubted  that  although  by  the  operation  of  the  statute,  the  seller 
might  fail  to  recover  the  price  of  the  goods  by  the  terms  of  the  contract,  he  could 
not  fail  to  recover  upon  a  quantam  valebant :  Poulter  v.  Killingbeck,  1  B.  &  P. 
397 ;  Earl  of  Falmouth  v.  Thomas,  1  Cr.  &  M.  109 ;  Teal  v.  Auty,  2  B.  &  B. 
(6  E.  C.  L.  K.)  99  ;  Philbrook  v.  Belknap,  6  Vt.  383  ;  and  the  difference  would 
therefore  be,  that  under  Donellan  v.  Reed,  the  plaintiff  could  recover  merely 
upon  proving  the  contract  and  its  performance  on  his  part,  while  under  the 
opposite  authorities,  the  benefit  to  the  defendant  must  be  shown. 

The  point  decided  in  Souch  v.  Strawbridge,  supra,  viz.,  that  the  statute  only 
applies  where,  from  the  terms  of  the  agreement,  the  contract  must  necessarily 
extend  beyond  one  year,  was,  long  before  that  decision,  held  the  same  way  in 
Moore  v.  I'ox,  10  Johns.  2-44,  where  a  promise  was  made  by  one  of  a  congregation 
to  pay  the  plaintiff,  its  pastor,  two  dollars  a  year  for  his  services  as  such,  and 
he  sued  for  services  rendered  many  years  after,  and  it  was  held  that  the  plain- 
tiff having  received  his  salary  semi-annnally,  it  must  be  presumed  that  such 
was  the  understanding  at  the  time  of  the  agreement,  and  hence  the  contract 
was  not  within  the  statute,  because  the  plaintiff  could  have  withdrawn  at  any 
time  within  the  year,  and  yet  recovered  his  services  for  the  first  six  months. 
So  in  Artcher  v.  Zeh,  5  Hill.  200;  and  it  seems  also,  that  whenever  the  time  oi 
the  duration  of  the  contract  is  to  depend  on  the  contingency  of  life,  the  con- 
tract need  not  be  written:  Wells  v.  Horton,  4  Bing.  (13  E.  C.  L.  R.)  40 
Thompson  v.  Gordon,  3  Strob.  197 ;  Bull  v.  McCrea,  8  B.  Mon.  422 ;  as,  for 
instance,  a  promise  not  to  carry  on  the  business  of  a  livery -stable  keeper,  be- 
cause the  death  of  the  contracting  party  might  happen  within  the  year :  Lyo>» 
V.  King,  11  Mete.  411 ;  a  promise  to  be  performed  on  the  death  of  the  prom- 
isor: Wells  I'.  Horton,  4  Bing.  (13  E.  C.  L.  E.)  40  ;  Thompson  v.  Gordon,  3 
Strob.  197,  &c. ;  because  the  death  of  the  promising  party  might  occur  instan- 
taneously. The  student  will  find  these  and  many  other  cases  classified  in  the 
American  note  to  Peter  v.  Compton,  1  Smith's  L.  C.  614,  Sth  Am.  ed. — R. 

If  by  its  terms  or  by  reasonable  construction,  a  contract  not  in  writing  cac 
be  fully  performed  within  a  year,  although  it  can  be  done  only  by  the  occur- 
rence of  some  improbable  event,  as  the  death  of  a  person  referred  to,  it  is  not 
within  the  statute.  So  if  it  can  be  performed  on  one  side  within  a  year : 
Blanding  v.  Sargent,  33  N.  H.  239  ;  Wiggins  v.  Keizer,  6  Ind.  252 ;  Soggins  v. 
Heard,  31  Miss.  426 ;  Suggett  v.  Cason,  26  Mo.  221  ;  Burney  v.  Ball,  24  Ga. 
505;  Sherman  v.  Champlain  Co.,  31  Vt.  162;  Wilson  v.  Ray,  13  Ind.  1; 
Dresser  v.  Dresser,  35  Barb.  573;  HjU  v.  Jamieson,  16  Ind.  125.  Payment  or 
performance  of  the  consideration  of  an  agreement,  not  to  be  performed  within 
the  year,  never  takes  it  out  of  the  statute :  Pierce  v.  Paine,  28  Vt.  34  ;  see 
Boutwell  i;.  O'Keefe,  32  Barb.  434.  An  agreement  to  employ  a  person  for  the 
term  of  one  year,  to  commence  infuturo,  is  void:  Amburger  v.  Marvin,  4  E.  D. 
Sra.  393 ;  Kelly  i'.  Terrel,  26  Ga.  551.  An  agreement  by  an  infant  to  work  seven 
years  for  his  board  is  not  within  the  statute :  Wilhelm  v.  Hardman,  13  Md. 
140.  A  parol  agreement  not  to  carry  on  a  trade  in  the  village  of  B.,  is  not 
within  the  statute,  as  it  may  be  wholly  performed  within  one  year  by  the  death 

153 


138  THE   STATUTE   OF   FRAUDS.  [lECT.  Ill, 

in  a  case  where  the  defendant,  in  a  letter  signed  by  liim, 
proposed  to  the  plaintiff  that  she  should  assign  to  the 
defendant,  in  trust  for  an  institution  managed  by  him, 
a  patent  which  she  had  obtained  for  making  toys,  such 
patent  to  be  used  by  the  institution,  the  plaintiff'  to  have 
5  per  cent,  on  the  profits,  and  the  defendant  to  provide 
for  the  next  j)ayment  in  respect  of  the  patent ;  and  if 
the  payments  made  should  not  equal  a  certain  sum  in 
the  first  and  subsequent  years,  the  plaintiff"  to  have  tlie 
right  to  reclaim  the  patent,  and  this  proposal  was  ac- 
cepted by  the  plaintiff"  by  word  of  mouth ;  it  was  held 
that  the  contract  did  not  require  to  be  in  writing  under 

r-.   ^^-.    the  4th  section  of  the  Statute  of  Frauds  *inas- 

r  1391 

•-         -•    much  as  all  that  w^as  to  be  done  by  the  plaintiff" 

as  tlie  consideration  of  defendant's  promise  was  capable 

of  being  done  within  a  year,  and  it  did  not  appear  that 

any   part   of  it   was   to   be   postponed    until    after   a 

Where  a  servant  has  entered  on  his  duties  under  a 
verbal  contract  for  yearly  service,  coming  within  the 
4tli  section,  and  is  dismissed  within  the  year  for  no  fault 
of  his  own,  he  can,  it  seems,  recover  the  value  of  the 
services  rendered  by  him  up  to  the  time  of  his  dis- 
missal (/). 

I  have  now  gone  through  the  five  cases  to  which  the 
4th  section  of  the  Statute  of  Frauds  applies,  and  in 
which  it  requires  a  written  memorandum  of  the  con- 
tract. There  are  one  or  two  cases  of  very  considerable 
importance  in  practice  on  which  I  shall  briefly  observe 

{k)  Smith  V.  Neale,  2G  L.  J.  (C.  P.)  143 ;  2  C.  B.  (N.  S.)  (89  E.  C.  L.  E.) 
67. 

(0  See  Snelling  v.  Lord  Huntingfield,  1  Cr.  M.  &  E.  20  ;  and  the  remarks 
of  Thesiger,  L.  J.,  in  Britain  v.  Eossiter,  48  L.  J.  (Q.  B.)  362,  367 ;  11  Q.  B. 
D.  123,  133. 

of  either  party:  Eichardson  v.  Pierce,  7  E.  I.  330 ;  Worthy  v.  Jones,  11  Gray, 
168.— s. 

154 


LECT.  III.]  YEAR.  139 

in  the  next  Lecture,  in  which  a  writing  is  required  by 
the  express  enactment  of  the  legislature.  Having  men- 
tioned them,  I  shall  say  something  of  the  consideration 
upon  which  a  simple  contract  may  be  grounded,  and 
which  is,  as  you  are  aware,  an  essential  part  of  every 
such  contract;  and  then,  having  finished  the  remarks  I 
had  to  make  on  Simple  Contracts  exclusively,  shall 
resume  the  "^consideration  of  the  general  law  of  r^--,  .  r.-| 
contracts,  and  shall  speak  of  the  competency  or 
incompetency  of  the  contracting  parties,  and  of  remedies 
by  which,  in  case  of  breach  of  contract,  their  perform- 
ance is  to  be  enforced. 


155 


[*141]  LECTURE  IV. 

SALE  OF  GOODS,  ETC.,  UNDER  THE  17tH   SECTION  OF  THE 

STATUTE    OF   FRAUDS. OTHER    CONTRACTS    WHERE 

WRITING  IS  OR  HAS  BEEN    NECESSARY. — POINTS    AP- 
PLYING    TO    ALL    SIMPLE     CONTRACTS. ASSENT. 

OFFER  AND  ACCEPTANCE.— CONSIDERATION  OF   CON- 
TRACTS BY  DEED  AND  OF  SIMPLE  CONTRACTS. 

I  CONCLUDED  in  tlie  last  Lecture  the  consideration  of 
the  five  cases  in  which  the  4th  section  of  the  Statute  of 
Frauds  renders  it  necessary  that  a  contract  should  be 
reduced  into  writing.  There  are,  as  I  then  said,  a  few 
other  cases,  which,  being  of  constant  occurrence,  it  will 
be  right  to  specify  before  proceeding  to  the  next  branch 
of  the  subject. 

The  first  of  these  cases  is  that  of  a  sale  for  the 
price  of  £10  or  upwards,  regarding  which  the  17th 
section  of  the  Statute  of  Frauds  lias  provided  as  fol- 
lows : — 

"No  contract  for  the  sale  of  any  goods,  wares,  or 
merchandises  for  the  price  of  £10  or  upwards  shall  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so 
r-^1491  ^ol^^»  ^^^  actually  receive  the*same;  or  give 
something  in  earnest  to  bind  the  bargain,  or  in 
part  payment;  or  that  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  be  charged  by  such  contract,  or  their  agents 
thereunto  lawfully  authorized." 

As  to  the  subject-matter  of  this  section  there  is  little 
difficulty  in  applying  it.  As  to  the  case  of  growing 
crops,  and  trees,  and  roots,  &c.,  in  the  ground,  the  law 
156 


LECT.  IV.]  SALE   OF   GOODS.  142 

has  been  already  considered  in  treating  on  the  4th 
section^  It  has  been  decided  that  shares  in  railway  and 
other  joint  stock  companies  are  not  an  interest  in  land 
"vvithin  the  4th  section  of  tlie  Statute  of  Frauds;  nor  are 
they  goods,  wares,  or  merchandises,  within  the  17tli  (a). 
A  sale,  also,  of  tenant's  fixtures  is  not  a  sale  of  goods 
within  this  section,  and  as  we  have  already  seen  {ante,  p. 
*127),  is  not  within  the  4th  {b). 

The  first  great  difference  which  you  will  observe  be- 
tween this  section  and  tlie  4th  section  of  the  same  Act  is, 
that  the  4th  section  renders  a  writing  necessary  in  all  cases 
which  fall  within  its  terms ;  whereas  the  17th  mentions 
three  circumstances,  any  one  of  which  it  (hrects  shall 
be  as  effectual  as  *a  writing,  namely,  accept-  r:{:-|4o-i 
ance  of  any  part  of  the  goods,  payment  of  part 
of  the  price,  and,  lastly,  the  giving  something  by  way 
of  earnest  to  bind  the  bargain,  or  in  part  payment ;  any 
one  of  which  three  things  will  as  effectually  perfect  the 
sale  as  a  writing  would  (c).  Where  none  of  these  has 
taken  place,  a  writing,  however,  becomes  necessary  ;^  and 

(a)  Humble  v.  Mitchell,  11  A.  &  E.  (39  E.  C.  L.  K.)  205 ;  Bradley  v.  Holds- 
worth,  3  M.  &.  W.  422;  Bowlby  v.  Bell,  3  C.  B.  (54  E.  C.  L.  K.)  284;  Knight 
V.  Barber,  16  M.&  W.  66  ;  Tempest  v.  Kilner,  3  C.  B.  (54  E.  C.  L.  R.)  249. 
See  Baxter  v.  Brown,  7  M.  &  G.  (49  E.  C.  L.  R.)  198, 

(6)  Lee  v.  Gaskell,  1  Q.  B.  D.  700;  45  L.  J.  (Q.  B.  etc.)  540. 

(c)  As  to  what  amounts  to  acceptance  and  receipt  within  the  meaning  of 
this  section,  generally,  see  Blackburn  on  Sales,  22,  23 ;  Benjamin  on  Sales, 
Book  I,  part  ii.  chap.  iv.  As  to  what  is  a  sufficient  acceptance  and  receipt  of 
bulky  things  such  as  growing  timber,  see  Marshall  v.  Green,  1  C.  P.  D.  35 ; 
45  L.  J.  (Q.  B.  etc.)  153. 

'  Delivery  to  and  acceptance  by  the  agent  of  the  vendee  is  sufficient :  Ont- 
water  v.  Dodge,  6  Wend.  397.  Aliter  of  an  acceptance  by  a  mere  shopboy, 
out  of  the  scope  of  his  duty :  Smith  v.  Mason,  Anthon,  225.  Goods  are  re- 
ceived and  accepted  by  the  purchaser  within  the  Statute  of  Frauds  when 
they  are  transported  by  the  seller  to  the  place  of  delivery  appointed  by  the 
agent  who  contracted  for  them,  and  are  there  delivered  to  another  agent  of 
the  purchaser,  and  are  by  him  shipped  to  a  port  where  the  purchaser  had 
given  him  general  directions  to  ship  goods  of  the  same  kind  :  Snow  v.  War- 
ner, 10  Mete.  132.  A  delivery  of  goods  by  the  vendor,  on  a  parol  sale, 
whether  actual  or  constructive,  and  an  acceptance  by  the  vendee,  is  a  per* 

157 


143  SALE   OF   GOODS  [lECT.  IV. 

if  there  l)e  none,  the  bargain  cannot  be  enforced  by 
action.     It  was  formerly  indeed  thought  that  the  opera- 

forraance  of  the  contract,  and  the  vendor  cannot  afterwards  retract  and  avoid 
the  sale  as  being  within  the  Statute  of  Frauds :  Johnson  v.  Watson,  1  Ga. 
348.  To  constitute  a  delivery  and  acceptance  of  goods  sold,  within  the  mean- 
ing of  the  statute,  something  more  than  mere  words  is  necessary.  There 
must  be  some  act  of  the  parties,  amounting  to  a  transfer  of  the  possession, 
and  an  acceptance  thereof  by  the  buyer,  and  the  case  of  cumbrous  articles  is 
not  an  exception  to  this  rule  :  Shindler  v.  Houston,  1  N.  Y.  261.  "Where,  by 
the  terms  of  an  agreement  for  the  sale  and  purchase  of  goods,  cash  is  to  be 
j)aid  on  the  delivery  of  the  goods,  jaayment  of  the  money  is  sufficient  evidence 
that  the  goods  have  been  delivered  in  pursuance  of  the  contract,  for  the  pur- 
pose of  taking  the  case  out  of  the  Statute  of  Frauds:  Aguirre  v.  Allen,  10 
Barb.  74.  See  also  upon  the  subject  of  acceptance  of  part,  Vincent  v,  Ger- 
mond,  11  Johns.  283;  Seymour  v.  Davis,  2  Sand.  239. 

A  contract  to  make  machines  for  a  specified  price  and  find  the  materials,  is 
not  witliin  the  statute  :  Spencer  v.  Cone,  1  Mete.  283.  If  the  articles  exist  at 
the  time  in  the  condition  in  which  they  are  to  be  delivered,  it  should  be  re- 
garded as  a  contract  of  sale ;  but  if  labour  and  skill  are  to  be  applied  to  exist- 
ing materials,  it  is  then  a  contract  for  the  manufacture  of  such  article  :  Hight 
I.  Kipley,  19  Me,  137 ;  Cummings  v.  Dennett,  26  Me.  397  ;  Cason  v.  Cheely, 
6  Ga.  554 ;  Seymour  v.  Davis,  2  Sand.  239  ;  Allen  v.  Jarvis,  20  Conn.  38 ; 
Bronson  v.  Wiman,  10  Barb.  406 ;  Hardell  v.  McClure,  1  "Wis.  271.  A  de- 
livery takes  the  case  out  of  the  statute  :  Houghtaling  v.  Ball,  19  Mo.  84.  It 
may  be  subsequent  to  the  agreement :  Marsh  r.  Hyde,  3  Gray,  331  ;  Sale  v. 
Darrah,  2  Hilt.  184.  A  parol  sale,  unaccompanied  by  an  act  of  the  vendee 
indicating  acceptance  of  the  goods  is  void :  Alderton  r.  Buchoz,  3  Mich.  322  ; 
Shepherd  v.  Pressey,  32  N.  H.  49;  Gilman  v.  Hill,  36  lb.  311.  Partial  de- 
livery by  vendor  is  a  part  performance  which  takes  the  case  out  of  the  statute  : 
Dennison  v.  Carnahan,  1  E.  D.  Sm.  144  ;  Swigart  v.  McGee,  19  Ark.  473.  A 
parol  contract  for  goods  on  shipboard,  without  delivery,  is  void:  Stevens  v. 
Stewart,  3  Cal.  140.  Growing  crops  are  not  goods  and  chattels  within  the 
meaning  of  this  provision  :  Bours  v.  "VV^ebster,  6  lb.  660.  A  provision  for  the 
transportation  of  cattle  to  the  place  of  delivery,  although  effected  according 
to  the  verbal  agreement,  does  not  take  it  out  of  the  statute :  Barbour  r.  Disher 
11  Rich.  347.  When  goods  are  purchased  under  a  parol  contract,  without  the 
payment  of  any  earnest  money,  the  delivery  of  them  to  a  carrier,  selected 
and  named  by  the  purchaser,  and  their  acceptance  by  the  carrier,  constitute  a 
sufficient  acceptance:  Spencer  v.  Hale,  30  Vt.  314.  The  mere  taking  a  sample 
without  an  express  understanding  that  such  taking  is  to  be  a  delivery  is  not 
enough :  Carver  v.  Lane,  4  E.  D.  Sm.  1C8.  There  is  no  acceptance  although  the 
goods  may  have  been  delivered  to  a  carrier,  so  long  as  the  buyer  has  the  right 
to  object  to  the  quantity  or  quality:  Lloyd  v.  Wright,  25  Ga.  215.  A  verbal 
agreement  to  purchase  goods  and  credit  the  price  towards  payment  of  an  old 
debt  is  valid  the  moment  the  act  of  giving  the  credit  is  performed  by  the 
buyer  making  the  entry  in  his  books :  Brabin  v.  Hyde,  30  Barb.  265.  A 
promise  to  pay  to  the  vendor's  creditor,  accepted  by  him,  who  thereupon  dis- 
158' 


LECT.  IV.]     UNDER  THE  STATUTE  OF  FKATJDS.  143 

tion  of  the  17tli  section  was  to  make  the  bargain  void 
altoo;ether  in  the  absence  of  one  of  the  three  essential 
circLimstances  above-mentioned.  Thus  in  Laythoarp  v. 
Bryant  {d),  Bosanquet,  J.,  says:  "the  4th  section  does 
not  avoid  contracts  not  signed  in  the  manner  described  ; 
it  only  precludes  the  right  of  action.  This  17th  section 
is  stronger,  and  avoids  contracts  not  made  in  the  manner 
prescribed."  This  proposition,  however,  hardly  repre- 
sents the  present  state  of  the  law,  and  since  the  case  of 
Bailey  v.  Sweeting  (e),  it  is  not  safe  to  say  that  a  parol 
sale,  unaided  by  any  of  the  three  formalities  mentioned 
in  the  17th  section  as  equivalent  to  writing,  is  totally 
and  ^entirely  void.  In  that  case,  a  letter  from  r*-|44-] 
the  purchaser  to  the  seller  of  goods,  written 
after  the  contract  was  made,  and  the  goods  had  been 
sent,  was  held  a  sufficient  memorandum  to  satisfy  the 
17th  section;  and  Williams,  ^.,  in  giving  judgment, 
said  :  "  It  cannot  be  controverted  that,  in  point  of  fact, 
there  was  a  good  and  lawful  contract  for  the  sale  of  the 
goods,  the  price  of  which  is  sought  to  be  recovered.  It 
is  clear,  however,  that  as  the  price  is  greater  than  £10, 
the  contract,  though  good,  would  not  be  actionable, 
unless  the  requisites  of  the  Statute  of  Frauds  had  been 
complied  with."  (His  Lordship  here  read  the  17th 
sect.)  "  The  effect  of  that  section  is,  that  though  there 
is  a  valid  verbal  contract,  it  is  not  actionable  unless 
something  of  several  things  has  happened,  one  of  which 
is,  the  existence  of  a  note  or  memorandum  in  writing 

{d)  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  735. 

(e)  9  C.  B.  N.  S.  (99  E.  C.  L.  R )  843,  30  L.  J.  (C.  P.)  150,  154. 

charges  the  vendor,  is  a  sufRcient  part  payment :  Cotterill  v.  Stevens,  10  "Wis. 
422.  A  delivery  and  acceptance  of  goods,  sufficient  to  satisfy  the  Statute  of 
Frauds,  can  only  be  shown  by  some  clear  and  unequivocal  act:  Denny  v. 
"Williams,  5  Allen,  1.  A  part  payment  will  not  take  a  contract  out  of  the 
f  tatute  unless  made  at  the  time  of  the  contract :  Bissell  v.  Balcom,  40  Barb. 
9S.-S. 

159 


144  SALE   OF   GOODS  [lECT.  IV. 

of  tlie  bargain  signed  by  the  party  to  be  charged.  As 
soon  as  that  occurs,  the  contract,  though  not  pieviously 
actionable,  becomes  actionable."  In  the  recent  case  also 
of  Maddison  v.  Alderson  (/),  Lord  Blackburn  says  :  "  I 
think  it  is  now  finally  settled  that  the  true  construction 
of  the  Statute  of  Frauds,  both  the  4th  and  the  17th 
sections,  is  not  to  render  the  contracts  within  them 
void,  still  less  illegal,  but  is  to  render  the  kind  of  evi- 
dence required  indispensable  when  it  is  sought  to  enforce 
the  contract." 

PM"!  *^  doubt  was  entertained  at  one  period 
whether  the  17th  section  included  the  case  of 
a  contract  for  something  not  in  existence  in  a  chattel 
state  at  the  time  of  making  the  bargain,  but  which  was 
to  become  a  chattel  before  the  time  agreed  upon  for  its 
delivery  {g).  Where,  for  instance,  growing  timber  was 
bargained  for,  to  be  delivered  cut  into  planks,  or  a  ship 
or  a  carriage  not  yet  built.^     However,  any  doubt  that 

(/)  8  App.  Cas.  467,  488 ;  52  L.  J.  (Q.  B.)  737,  749. 
(g)  Lee  v.  Griffin,  30  L.  J.  (Q.  B.)  252. 

^  It  was  formerly  held  that  executory  contracts  were  not  within  the  statute, 
but  that  it  was  confined  to  cases  where  the  buyer  was  immediately  answerable  : 
Towers  v.  Osborne,  Str.  506;  Clayton  v.  Andrews,  4  Burr.  2101  ;  but  this  dis- 
tinction was  doubted  by  Lord  Thurlow,  in  3  Bro.  C.  C.  355,  and  was  subse- 
quently overruled  :  Rondeau  v.  Wyatt,  2  H.  Bl.  63  ;  Cooper  v.  Elston,  7  T.  R. 
14. 

The  statute  of  9  Geo.  IV.  has  not  been  generally  re-enacted  in  this  country,  and 
hence  the  English  cases  upon  the  construction  of  this  part  of  the  Statute  of 
Frauds  before  its  alteration  have  still  a  practical  application  here.  The  first 
case  was  Towers  v.  Osborne,  already  cited,  where  the  defendant  bespoke  a 
chariot,  and  refused  to  take  it  when  made,  and  the  Court  held  that  a  writing 
was  not  necessary,  for  the  statute  "  related  only  to  contracts  for  the  actual  sale 
of  goods,  when  the  buyer  is  immediately  answerable,  without  time  given  him 
by  special  agreement."  Then  came  Clayton  v.  Andrews,  supra,  where  the 
plaintiff  agreed  to  deliver  a  load  and  a  half  of  wheat  within  a  month,  at  so 
much  a  load,  to  be  paid  on  delivery,  the  wheat  being  then  unthrashed,  and 
the  Court,  on  the  authority  of  Towers  v.  Osborne,  held  the  case  not  to  be  within 
the  statute,  rather,  however,  on  the  ground  of  the  contract  being  executory, 
than  because  the  wheat  did  not  then  exist  in  the  form  in  which  it  was  to  be  de- 
livered. Then  these  two  cases  were,  as  has  been  said,  overruled  as  to  the  dis- 
160 


LECT.  IV.]     UNDER  THE  STATUTE  OF  FRAUDS.  145 

formerly  existed  on  this  subject  is  now  put  an  end  to; 
for,  by  statute  9  Geo.  4,  c.  14,  s.  7,  it  is  enacted  that  the 

tinctlon  between  executed  and  executory  contracts.  Then  in  Garbutt  v. 
Watson,  5  B.  &  Aid.  (7  E.  C.  L.  R.)  613,  the  contract  was  for  the  delivery  of 
flour,  which  was  then  unground  wheat,  and  the  Court  said  that  "  in  Towers 
t'.  Osborne,  the  chariot  which  was  ordered  to  be  made  would  never,  but  for  that 
order,  have  had  any  existence.  But  here  the  plaintiffs  were  proceeding  to  grind 
the  flour  for  the  purposes  of  general  sale,  and  sold  this  quantity  to  the  de- 
fendant as  part  of  their  general  stock.  The  distinction  is  indeed  somewhat 
nice,  but  the  case  of  Towers  v.  Osborne  is  an  extreme  case,  and  ought  not  to  be 
carried  further,"  and  it  was  said  that  the  question  was  whether  the  contract 
was  for  the  sale  of  goods,  or  for  work  and  labour  and  material  found ;  and  the 
case  of  Clayton  v.  Andrews,  which  was  scarcely  distinguishable  from  the  present 
one  on  this  point,  was  said  to  have  been  also  incorrectly  decided  upon  the  point 
of  the  condition  of  the  wheat.  Subsequent  cases  have  held  that  contracts  to 
sell  oil  not  then  expressed  from  seeds:  Wilks  c.  Atkinson,  6  Taunt.  (1  E.  C.  L. 
R.)  11 ;  to  supply  a  house  with  pipes  to  be  laid  in  a  specified  manner:  West 
Middlesex  Co.  v.  Suwerkrop,  4  C.  &  P.  87 ;  to  make  a  copper-plate  press  to 
be  ready  in  three  months:  Pinner  v.  Arnold,  2  Cr.  M.  &  R.  613,  overruling 
Buxton  V.  Beddall,  3  East,  304,  and  the  like',  are  within  the  statute,  and  must, 
therefore,  be  written  ;  but  a  contract  to  deliver  a  quantity  of  oak  pins,  which 
were  not  then  made,  but  were  to  be  cut  out  of  slabs,  being  merely  an  agree- 
ment for  labour  to  be  done  upon  materials  found,  was  held  not  to  be  a  "  contract 
for  the  sale  of  goods,"  for  the  thing  to  be  delivered  did  not  exist  in  solido,  and 
would  be  incapable  of  delivery :  Groves  v.  Buck,  3  M.  &  S.  178.  In  this 
country,  the  distinction  between  the  contract  being  executed  and  executory  has 
also  been  disregarded :  Bennett  v.  Hull,  10  Johns.  364  ;  Crookshank  v.  Burrell, 
18  lb.  58;  Jackson  r.  Covert,  5  Wend.  141 ;  Cason  v.  Cheely,  6  Ga.  554.  As 
respects  the  condition  of  the  subject  of  the  contract,  it  has  been  truly  said  that 
"  the  difficulty  arises  not  so  much  from  any  uncertainty  in  the  rule,  as  from  the 
infinitely  various  shades  of  different  contracts.  If  it  is  a  contract  to  sell  and 
deliver  goods,  whether  they  are  then  completed  or  not,  it  is  within  the  statute. 
But  if  it  is  a  contract  to  make  and  deliver  an  article  or  a  quantity  of  goods,  it 
is  not  within  the  statute :"  per  Shaw,  C.  J.,  in  Gardner  v.  Joy,  9  Mete.  179 ; 
and  the  same  judge  subsequently  thus  laid  down  the  rule :  "  when  a  person  stip- 
ulates for  the  future  sale  of  articles  which  he  is  habitually  making,  and  which  at 
the  time  are  not  made  or  finished,  it  is  essentially  a  contract  of  sale,  and  not  a 
contract  for  labour ;  otherwise,  when  the  article  is  made  pursuant  to  an  agree- 
ment:" Lamb  i'.  Crofts,  12  lb.  356  ;  Cason  v.  Cheely,  6  Ga.  554.  Thus,  agree- 
ments to  make  the  woodwork  of  a  wagon,  to  be  paid  for  in  lambs  at  one  dollar 
a  head :  Crookshank  v.  Burrell,  18  Johns.  58 ;  to  completely  line  with  cloth, 
selected  by  defendant,  a  buggy  of  which  the  body  existed  in  an  unfinished 
state :  Mixer  v.  Howarth,  21  Pick.  204 ;  and  to  make  ten  stave  machines,  and 
find  the  materials  :  Spencer  v.  Cxine,  1  Mete.  283  ;  to  make  twelve  surgical  ad- 
justers, and  find  the  materials :  Allen  v.  Jarvis,  20  Conn.  38  ;  to  furnish,  as 
Boon  as  practicable,  one  thousand  or  twelve  hundred  malleable  hoe  shanks, 
«greeably  to  patterns  furnished :  Hight  v,  Ripley,  19  Me.  137 ;  were  respect- 

11  161 


145  SALE   OF   GOODS  [lECT.  IV. 

17th  section  of  the  Statute  of  Frauds  "  shall  extend  to 
all  contracts  for  the  sale  of  goods  of  the  value  of  £10 
sterlino-  and  upwards,  notwithstanding  the  goods  may 
be  intended  to  be  delivered  at  some  future  time,  or  may 
not,  at  the  time  of  such  contract,  be  actually  made,  pru 


ively  held  not  to  be  contracts  within  the  statute  :  see  Cummings  v.  Dennett,  26 
lb.  397  ;  but  a  contract  for  the  purchase  of  one  hundred  boxes  of  candles,  the 
time  of  delivering  not  being  mentioned,  but  the  defendant  stating  that  they 
w<;re  not  yet  manufactured,  but  he  would  manufacture  and  deliver  them  in  the 
course  of  the  summer,  was  in  a  late  case  held  to  be  a  "  sale  of  goods  "  within 
the  statute:  Gardner  v.  Joy,  9  Mete.  179;  so  of  cider  not  yet  manufactured: 
Seymour  v.  Davis,  2  Sandf.  241 ;  wheat  not  yet  thrashed :  Downs  v.  Eoss,  23 
Wend.  274  ;  and  cotton  to  be  packed  in  bales:  Cason  v.  Cheely,  6  Ga.  554.  In 
Maryland,  in  1821,  the  case  of  Eichelberger  v.  M'Cauley,  5  Harr.  &  J.  214, 
was  for  the  delivery  of  unthrashed  wheat,  and  on  the  authority  of  Clayton  v. 
Andrews,  the  contract  was  held  not  to  be  within  the  statute,  but  the  late  au- 
thorities seem  generally  to  agree  in  condemning  the  decision  of  tliat  case,  and 
say,  moreover,  of  Towers  v.  Osborne,  that  it  was  rightly  decided,  but  upon  a 
wrong  reason. 

It  has  been  held  in  England  that  contracts  for  the  sale  of  shares  in  a  joint- 
stock,  banking  company,  or  in  a  railway  company,  or  of  foreign  stock,  need 
not  be  in  writing,  as  not  coming  within  the  term  "  goods,  wares,  or  merchan- 
dise:" Humble  V.  Mitchell,  11  A.  &  E.  (39  E.  C.  L.  R.)  205;  Bowbly  v.  Bell, 
3  C.  B.  (54  E.  C.  L.  E.)  284  ;  Tempest  t).  Kilner,  lb.  249 ;  Duncuft  f.  Albrecht, 
12  Sim.  189;  Heseltine  v.  Siggers,  1  Exch.  867 ;  but  in  Colvin  v.  Williams,  3 
Harr.  &  J.  38,  and  Tisdale  v.  Harris,  20  Pick.  9,  the  statute  was  differently  con- 
strued (in  Gadsden  v.  Lance,  1  McMul.  Eq.  87,  this  point  wns  left  unde- 
cided), and  in  Baldwin  v.  Williams,  3  Mete.  365,  the  authority  of  Tisdale  v. 
Harris  was  confirmed,  and  the  statute  held  to  apply  also  to  sales  of  promissory 
notes. — R. 

An  agreement  to  procure  and  deliver  at  a  certain  time  and  place  one-half 
of  a  frame  for  a  vessel  to  be  liewn  and  fashioned  according  to  certain  mould,  is 
not  within  the  statute:  Abbott  v.  Gilchrist,  38  Me.  260.  A  contract  for  delivery 
at  a  future  day  of  goods  yet  to  be  manufactured  is  not  a  contract  for  sale,  but  for 
work  and  labour  only  :  Donovan  i'.  Willson,  26  Barb.  138;  Parker  r.  Schenck, 
28  lb.  38 ;  see  Woodford  v.  Patterson,  32  lb.  630  ;  Mead  v.  Ca.se,  33  lb.  202 ; 
Phipps  V.  McFarlane,  3  Minn.  10!*;  Atwater  v.  Hough,  29  Conn.  508;  a  con- 
tract for  the  manufacture  of  an  article  out  of  material  to  be  supplied  by  the 
manufacturer  is  not  within  the  statute:  Crockett  v.  Scribner,  64  Me.  447  ;  a 
contract  for  the  sale  of  corn  if  by  its  terms  the  corn  is  to  be  gathered  and 
shocked  before  delivery,  is  not  within  the  statute :  Eentch  v.  Long,  27  Md. 
188 ;  Webster  v.  Zielly,  52  Barb.  482 ;  and  see  Ross  v.  Welch,  1 1  Gray,  235 ; 
Bissell  V.  Palcom,  40  Barb.  98;  Wylie  v.  Kelly,  41  lb.  594;  Malone  v.  Plato, 
22  Cal.  103 ;  Brabin  v.  Hyde,  32  N.  Y.  519 ;  Lay  v.  Neville,  25  Cal.  545 ;  HiU 
V.  McDonald,  17  Wis.  97  ;  Dow  v.  Worthen,  37  Vt.  108.— s. 
162 


LECT.  IV.]     UNDER  THE  STATUTE  OF  FRAUDS.  145 

cured,  or  provided,  or  fit  or  ready  for  delivery,  or  some 
act  may  be  requisite  for  the  making  or  completing 
thereof,  or  rendering  the  same  fit  for  delivery."  These 
two  statutes,  according  to  a  well-known  rule,  are  to  be 
read  as  incorporated  together  (A),  one  effect  of  which  is 
that  the  17th  section  of  the  Statute  of  Frauds  must  be 
read  as  applying  to  all  goods,  &c.,  of  the  value  of  £10, 
instead  of  the  price  to  that  amount  (i) . 

*Where  a  writing  is  relied  on  to  satisfy  the  p^^.^-, 
provisions  of  the  17th  section,  the  rules  which  ■-  -• 
govern  the  case  are  very  analogous  to  those  which  I 
have  already  stated  with  regard  to  the  4th.  Tlie  signa- 
ture must  be  by  the  party  to  be  cha7'ged,  or  his  agent. 
And  one  party  cannot  be  the  other's  agent  for  this  pur- 
pose {k).  Nor  where  tlie  agent  of  the  party  complain- 
ing of  a  breach  of  the  contract  has  signed  with  his  ow^n 
name  a  memorandum  of  the  bargain  at  the  request  of 
the  party  to  be  charged,  is  he  to  be  considered  as  the 
agent  of  the  latter  in  the  absence  of  other  circumstances 
showing  authority  to  the  signer  to  act  as  the  agent  of 
the  party  to  be  charged  {I).  But  under  neither  the  4th 
nor  the  17th  section  is  there  any  necessity  for  the  agent's 
being  appointed  by  writing.  The  question  who  is  an 
agent  lawfully  authorised  within  the  meaning  of  the 
Statute  of  Frauds  will  be  considered  more  fully  here- 
after when  we  come  to  the  law  of  agency  {m). 


(h)  Scott  V.  Eastern  Counties  Railway  Co.,  12  M.  &  W.  33;  Harman  v. 
Reeve,  25  L.  J.  (C.  P.)  2.57 ;  18  C.  B.  (86  E.  C.  L.  R.)  587. 

(t)  Harman  v.  Reeve,  supra. 

(k)  Wright  V.  Dannali,  2  Camp.  203 ;  Farebrotlier  v.  Simmons,  5  B.  &  Aid. 
(7  E.  C.  L.  R.)  333 ;  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720 ;  40  L.  J.  (Q.  B.) 
312. 

(/)  Graham  1'.  Musson,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  603  ;  Graham  v.  Fret- 
well,  3  M.  &  G.  (42  E.  C.  L.  R.)  368.  See  Bird  v.  Boulter,  4  B.  &  Ad.  (24  E. 
C.  L.  R.)  443,  post;  and  Mews  v.  Carr,  26  L.  J.  (Ex.)  39;  1  H.  &  N.  484; 
Durrell  v.  Evans,  30  L.  .J.  (Ex.)  254. 

(/»)  See  post,  Lect.  ix.,  "  Agent  under  Statute  of  Frauds." 

163 


146  SALE   OF   GOODS  [lECT.  IV. 

Under  the  17th  section,  too,  as  well  as  under  the 
4th,  several  documents  may  be  read  together  as 
pj.^  ._-,  *niaking  up  the  contract,  provided  they  be 
•-  '-^  sufficiently  connected  in  sense  among  them- 
selves without  the  aid  of  parol  evidence  (n).  And  in 
such  cases,  as  different  phrases  are  commonly  used  in 
the  different  documents,  it  is  peculiarly  important  to 
ascertain  that  both  parties  mean  the  same  thing ;  as 
where  there  was  a  treaty  for  the  sale  of  a  horse,  and 
one  wrote  that  he  would  buy  him  if  warranted  sound 
and  quiet  in  harness,  and  the  other  wrote  that  he  would 
warrant  him  sound  and  quiet  in  double-harness,  it  w'as 
considered  by  the  Court  that  the  parties  never  had  con- 
tracted in  writing  ad  idem,  and,  consequently,  that  the 
statute  had  not  been  complied  with  (o). 

It  need  hardly  be  added  that  although  it  appears  that 
there  are  several  memoranda  of  the  contract,  it  will  not 
be  presumed  that  they  differ ;  but  on  the  contrary,  if 
any  one  of  them  contain  enough  to  show  the  contract,  it 
is  a  sufficient  memorandum  within  the  statute.  There- 
fore, in  an  action  by  the  vendor  against  the  purchaser 
of  goods,  a  note  sigjned  by  a  broker  acting  for  both 
parties,  expressing  that  the  broker  had  "sold"  specified 
goods  at  a  specified  rate,  and  containing  all  the  terms  of 
r*14«1  the  *contract  (which,  from  containing  the  word 
"sold,"  is  called  in  commerce  the  sold  note,  and 
should,  in  fact,  correspond  with  another  also  signed  by 
the  broker  and  called  the  bought  note),  was  sufficient 
to  satisfy  the  statute.  "  If  in  ordinary  practice,"  said 
Willes,  J.,  "  the  bought  and  sold  notes  were  different 

(n)  Smith  v.  Surman,  9  B.  &  C.  (17  E.  C.  L.  R.)  561 :  Archer  v.  Baynes,  5 
Ex.  625 ;  Philliniore  v.  Barry,  1  Camp.  513  ;  Jackson  v.  Lowe,  1  Bing.  (8  E.  C. 
L.  R.)  9  ;  Pierce  v.  Corf,  L.  R.  9  Q.  B.  210. 

(o\  Jordan  v.  Norton,  4  M.  &  "W.  155  ;  Hutchison  v.  Bowker,  5  M.  &  "VV.  535. 
See  Sievewright  v.  Archibald,  17  Q.  B.  (79  E.  C.  L.  R.)  103;  20  L.  J.  (Q.  B.) 
529. 

164 


LECT.  IV.]     UNDER  THE  STATUTE  OF  FEAUDS.  148 

things,  there  might  be  some  ground  for  the  defendant's 
argument,  but  it  is  well  known  that  in  ordinary  prac- 
tice they  are  identical — the  one  being  a  copy  of  the 
other ;  and,  therefore,  it  would  be  a  violent  presumption 
to  assume  in  favour  of  the  defendant  that  the  bought 
note  Avas  a  different  one  from  the  sold  note.  The  sold 
note  is  to  be  presumed,  until  the  contrary  is  shown,  to 
represent  the  contract  between  the  parties"  {p).  And 
where  a  broker  who  has  authority  to  act  for  both  parties 
enters  in  his  broker's  book  both  the  bought  and  sold 
note,  and  signs  them  both,  this  is  a  sufficient  memo- 
randum of  the  bargain  to  satisfy  this  section  [q). 

It  was  said  by  Lord  Ellenborotigh  in  Egerton  v.  Mat- 
thews (r),  that  the  word  bargain,  used  in  this  section, 
does  not  render  so  strict  a  statement  of  the  transaction 
necessary,  as  the  word  agreement,  used  in  the  4th,  does 
of  matters  within  that  section.  It  has,  however,  been 
decided  that  the  names  of  both  parties  must  appear  in 
the  memorandum,  though  the  signature  of  the  party  to 
be  bound  alone  is  ^requisite;  for,  as  the  Court 
observed,  there  cannot  be  a  bargain  without  ^  J 
two  parties,  and  therefore  a  memorandum  naming  one 
only  is  not  a  memorandum  of  a  bargain  (s).  But  it 
seems  to  be  quite  enough  if  the  parties  are  sufficiently 
described  {t).  And  the  price  ought  to  be  stated  if  one 
was  agreed  on,  for  that  is  part  of  the  bargain  {u).     A 

(p)  Parton  v.  Crofts,  33  L.  J.  (C.  P.)  189. 

{q)  Thompson  v.  Gardiner,  1  C.  P.  D.  777  ;  and  see  antz,  pp.  *93,  *94. 

(r)  6  East,  307. 

(s)  Champion  v.  Plummer,  1  B.  &  P.  (N.  R.)  252 ;  Williams  v.  Lake,  2  E. 
&  E.  (105  E.  C.  L.  R.)  349 ;  29  L.  J.  (Q.  B.)  1 ;  Vandenbergh  v.  Spooner,  L. 
R.  1  Ex.  316 ;  35  L.  J.  (Ex  )  201 ;  see  Newell  v.  Radford,  L.  R.  3  C.  P.  52 ;  37 
L.  J.  (C.  P.)  1. 

[t]  See  ante,  pp.  *82-*85,  and  the  cases  there  cited  with  reference  to  the  4th 
section.  There  seems  no  distinction  in  this  respect,  in  point  of  principle,  be- 
tween the  17th  and  4th  sections. 

(w)  Elmore  v.  Kingscote,  5  B.  &  C.  (11  E.  C.  L.  R.)  583 ;  Hoadlej  v.  M'Laine, 
10  Bing.  (25  E.  C.  L.  R.)  482. 

165 


149  SALE   OF   GOODS  [lECT.  IV. 

memorandum  is  not  sufficient  that  does  not  mention 
price,  if  an  agreement  has  been  come  to  on  that  point. 
Thus,  when  the  seller  showed  the  buyer  a  list  of  prices, 
and  the  buyer  only  agreed  to  purchase  on  condition  of 
a  deduction  of  25  per  cent,  from  such  prices  for  cash 
payment,  and  then  wrote  an  order  for  certain  of  the 
articles,  not  specifying  anything  as  to  price;  this  was 
held  not  enough  to  satisfy  the  statute,  and  a  subsequent 
letter  from  him  declining  to  take  the  goods,  was  deemed 
also  insufficient  to  take  the  case  out  of  the  statute  (x). 
If  no  price  be  named,  the  parties  must  be  understood  to 
P^l  rA-|  have  agreed  for  what  the  thing  is  ^reasonably 
worth  (y).  Thus,  an  order  for  goods  "on 
moderate  terms"  is  a  sufficient  memorandum  within  the 
17th  section  of  the  Statute  of  Frauds  (z).  A  contract 
for  the  sale  of  goods  of  the  value  of  £10  is  within  the 
17th  section,  although  it  includes  other  matters  for 
which  a  writing  is  not  necessary  {a).  And  if  the  memo- 
randum contains  all  that  was  to  be  done  by  the  party 
sought  to  be  charged,  it  has  been  held  sufficient  to 
satisfy  the  17th  section,  though  not  to  make  a  valid 
agreement  in  cases  within  the  4tli  section  (b).  But  it  is 
important  to  be  borne  in  mind  that  in  construing  these 
memoranda  the  surrounding  circumstances  may  be  con- 
sidered, which  often  make  that  quite  plain  which  would 
be  obscure  without  them  (c). 

It  is  now  decided,  that  a  memorandum  is  sufficient 
which  contains  all  the  terms  of  the  bargain,  and  ac- 
knowledges it  to  have  been  made,  but  at  the  same  time 

(x)  Goodman  v.  Griffiths,  26  L.  J.  (Ex.)  145 ;  1  H.  &  N.  574. 

iy)  Valpy  v.  Gibson,  4  C.  B.  (56  E.  C.  L.  K.)  837. 

(z)  Ashcroft  V.  Morrin,  4  M.  &  Gr.  (43  E.  C.  L.  K.)  450. 

(a)  Harman  v.  Eeeves,  25  L.  J.  (C.  P.)  257 ;  18  C.  B.  (86  E.  C.  L.  E.)  587; 
Watts  V.  Friend,  10  B.  &  C.  (21  E.  C.  L.  K.)  446. 

(b)  Sari  V.  Bourdillon,  26  L.  J.  (C.  P.)  78 ;  1  C.  B.  (N.  S.)  (87  E.  C.  L.  E.) 
188  ;  Egerton  v.  Matthews,  6  East,  307. 

ic)  Newell  v.  Eadtord,  L.  E.  3  C.  P.  52;  37  L.  J.  (C.  P.)  1. 

166 


LECT.  IV.]      UNDER  THE  STATUTE  OF  FRAUDS.  150 

repudiates  the  contract.  Thus,  where  the  purchaser  of 
goods  wrote  to  the  seller,  referring  to  all  the  material 
terms  of  the  contract,  but  stating  that  he  had  never  re- 
ceived the  goods,  and  declined  to  do  so  because  they  had 
been  damaged  by  the  carrier  before  they  reached  him ; 
the  Court  '^considered  that  the  former  part  of  p-..^.-, 
the  letter  contained  a  memorandum  of  the  con-  •-  -^ 
tract,  which  was  all  that  was  required  by  the  statute ; 
and  that  the  existence  in  the  same  writing  of  the  refusal 
to  abide  by  the  bargain  did  not  neutralize  the  acknowl- 
edgment {d).  But  although  the  statute  invalidates  all 
contracts  for  the  sale  of  goods  unless  in  writing,  or  un- 
less the  buyer  accept  the  goods,  or  give  earnest,  or  pay 
in  whole  or  part,  and  therefore  virtually,  and  in  effect 
forbids  their  being  in  any  way  varied  or  altered  by 
parol  (e)  ;  yet  it  does  not  forbid  their  being  rescinded 
by  parol ;  and  there  is  no  doubt  that  they  may  be  so 
rescinded  (/). 

Another  case,  formerly  of  considerable  importance, 
in  which  the  legislature  required  that  a  particular  con- 
tract should  be  in  writing,  was  that  of  an  infant.  There 
are  many  contracts  which,  when  entered  into  by  an  in- 
fant under  the  age  of  twenty-one  years,  are  invalid,  as 
I  shall  have  occasion  to  explain  to  you  at  greater  length 
when  I  arrive  at  that  part  of  the  subject  which  relates 
to  *the  competency  of  parties  to  contracts,  but 
whichj  before  recent  legislation,  were  capable  of  ^  ''-' 
being  ratified  by  the  infant  when  he  arrived  at  his  full 

(d)  Bailey  v.  Sweeting,  9  C.  B.  (N.  S.)  (99  E.  C.  L.  R.)  843 ;  30  L.  J.  (C.  P.) 
150;  Wilkinson  v.  Evans,  L.  R.  1  C.  P.  407  ;  35  L.  J.  (C.  P.)  224;  Buxton  v. 
Rust,  L.  R.  7  Ex.  1,  279  (Ex.  Ch.) ;  41  L.  J.  Ex.  1,  173.  And  compare 
Cooper  V.  Smith,  15  East,  103. 

(e)  Harvey  v.  Grabham,  5  A.  &  E.  (31  E.  C.  L.  R.)  61 ;  Mar^liall  ?•.  Lynn, 
6  M  &  W.  109  ;  Stead  v.  Dawber,  10  A.  &  E.  (37  E.  C.  L.  R.)  57  ;  Moore  v. 
Campbell,  23  L.  J.  (Ex.)  310  ;  Noble  v.  Ward,  35  L.  J.  (Ex.)  81;  3G  L.  J. 
(Ex.)  91,  in  Ex.  Ch.;  S.  C,  L.  R.  1  Ex.  117 ;  lb.,  2  Ex.  135. 

(/)  lb.    See  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  58. 

167 


152      CONTEACTS   BY   INFANTS. — INSURANCE.     [lECT.  IV. 

age  of  twenty-one.  This  ratification  might,  at  common 
law,  have  been  by  parol ;  but,  it  was  enacted  by  9  Geo. 
IV.  c.  14,  s.  5,  that  no  action  should  be  maintained 
whereby  to  charge  any  person  upon  any  promise  made 
after  full  age  to  pay  any  debt  contracted  during  infancy, 
or  upon  any  ratification  after  full  age  of  any  promise  nr 
simple  contract  made  during  infancy,  unless  such  promise 
or  ratification  were  in  wriUng,  signed  by  the  party  to  be 
charged  therewith.  The  law  on  this  subject  however 
has  recently  been  altered  by  "  The  Infants  Kelief  Act, 
1874"  (37  &  38  Vict.  c.  62),  s.  2,  which  is  as  follows: 
—  "No  action  shall  be  brought  whereby  to  charge  any 
person  upon  any  promise  made  after  full  age  to  pay  any 
debt  contracted  during  infancy,  or  upon  any  ratification 
made  after  full  age  of  any  promise  or  contract  made 
during  infancy,  whether  there  shall  or  shall  not  be  any 
new  consideration  for  such  promise  or  ratification  after 
full  age."  And  this  section  applies  to  and  makes  void 
ratifications  made  after  the  passing  of  the  Act,  of  con- 
tracts made  before  that  time  (g). 

Contracts  of  insurance  must  in  general  be  printed  or 
written,  whether  the  contract  be  a  marine,  fire,  or  life 
insurance  {h)} 

^Another  case  is  that  of  a  promise  to  pay  a 
^  -*  debt  barred  by  the  Statute  of  Limitations  ;  but, 
as  I  shall  have  occasion  to  speak  again  of  that  statute 
before  the  conclusion  of  these  Lectures,  I  shall  reserve 

iff)  Kibble,  ExpaHe,  In  re  Onslow,  L.  E.  10  Ch.  373:  44  L.  J.  (Bank.)  63. 
{h)  30  &  31  Vict.  c.  23,  s.  7,  Sea.    See  14  Geo.  3,  c.  78,  Fire ;   and  14  Geo. 
3,  e.  48,  Life. 

'  This  requirement  is  of  statutory  origin.  There  are  similar  statutes  in 
Georgia:  Simonton  r.  Ins.  Co.  51  Ga.  SO;  Clarke  v.  Brand,  62  lb.  28;  but 
they  are  not  general  in  this  country  and  in  their  absence  parol  contracts  of 
insurance  will  be  sustained,  unless  in  conflict  with  some  explicit  provision  in 
the  charters  of  the  companies.  See  Eead  on  the  Statute  of  Frauds,  ^  1125- 
27  and  cases  cited. 

168 


LECT.  IV.]  MUTUAL   ASSENT.  153 

what  I  have  to  say  regarding  the  writing  by  which  its 
operation  may  be  defeated. 

Now,  these  are  the  principal  cases  in  which  the  law 
of  England  requires  that  particular  contracts  should  be 
reduced  into  writing ;  not  that  they  are  the  only  ones, 
for  there  are  many  statutes  making  writing  necessary  in 
certain  particular  transactions,  but  these  ai-e  the  cases 
of  most  frequent  occurrence,  and  therefore  fittest  to  be 
liere  mentioned. 

Having  now,  therefore,  pointed  out  to  you  the  practical 
distinction  which  exists  between  the  written  and  verbal 
contracts,  though  both  of  theui  alike,  if  not  sealed  and  de- 
livered, rank  but  as  simple  contracts,  it  is  time  to  touch  on 
some  points  which  apply  to  all  simple  contracts  alike. 

The  first  point  to  be  remarked  will,  perhaps,  at  first 
sight,  be  considered  as  nearly  self-evident,  but  much 
difiiculty  does,  in  fact,  arise  from  not  attending  to  it ; 
and,  upon  a  little  consideration,  it  will  appear  important 
to  be  borne  in  mind :  it  is  this,  that  the  parties  to  the 
contract  mutually  assent  to  the  same  thing  (i). 

*"  A.  contract,"  says  Pothier,  "  includes  a  con- 
currence  of  intention  in  two  parties,  one  of  '-  -' 
whom  promises  something  to  the  other,  who  on  his  part 
accepts  such  promise."  Hence,  assent  or  acceptance  is 
indispensable  to  the  validity  of  every  contract ;  for,  "  as 
I  cannot,"  continues  Pothier,  "by  the  mere  act  of  my 
own  mind  transfer  to  another  a  right  in  my  goods,  with- 
out a  concurrent  intention  on  his  part  to  accept  them, 
neither  can  I  by  my  promise  confer  a  right  against  my 
person  until  the  person  to  whom  the  promise  is  made 
has,  by  his  acceptance  of  it,  concurred  in  the  intention 
of  acquiring  such  right."  Wherever  there  is  not  an  as- 
sent, express  or  implied  {h),  to  the  terms  of  the  proposed 

(i)  See  Jordan  v.  Norton,  4  M.  &  W.  155,  ante,  p.  *147;  Foster  v.  Kowland, 
30  L.  J.  (Ex.)  306;  Felthouse  v.  Bindley,  31  L.  J.  (C.  P.)  204. 

{k)  As  to  an  assent  being  implied  to  terms  and  conditions  contained  in  % 

169 


154  SIMPLE   CONTRACTS.  [lECT.  IV. 

contract  by  both  parties,  there  is  no  mutuality,  and  no 
contract.  Take  for  instance  tlie  case  of  Hutchinson  v. 
Bowker  (I).  There,  the  defendants  wrote  to  the  plain- 
tiffs offering  them  a  certain  quantity  of  "  good  "  barley 
upon  certain  terms,  to  which  the  plaintiffs  answered, 
after  quoting  the  defendants'  letter,  as  follows : — "  Of 
which  offer  we  accept,  expecting  you  will  give  us  fine 
barley  and  full  weight."  The  defendants,  in  reply, 
stated  that  their  letter  contained  no  such  expression  as 
fine  barley,  and  declined  to  ship  the  same.  Evidence 
'^^ was  given  at  the  trial  that  the  terms  "good" 
L  -'  and  "  fine  "  were  terms  well  known  in  the  trade, 
and  the  jury  found  that  there  was  a  distinction  in  the 
trade  between  "  good  "  and  "  fine  "  barley.  It  was  held, 
that  although  it  was  a  question  for  the  jury  what  was 
the  meaning  of  those  terms  in  a  mercantile  sense,  yet, 
that  they  having  found  what  that  meaning  was,  it  was 
for  the  Court  to  determine  the  meaning  of  the  contract ; 
and  the  Court  held  that  there  was  not  a  sufficient  ac- 
ceptance of  the  offer  to  make  a  complete  contract. 
So,  too,  where  the  declaration  stated  that  J.  A.  wad 
indebted  to  the  plaintiff,  and  that  the  defendant's 
agent,  by  written  instrument,  promised  the  plaintiff 
as  follows : — "  Mr.  A.,  the  defendant,  offers  to  pay  a 
composition  of  7^.  in  the  £  on  your  account  against  his 
nephew,  J.  A.,  on  your  giving  proper  indemnification  to 
both.  In  the  event  of  your  accepting  the  offer  I  will 
thank  you  to  forward  me  full  particulars  of  your  account, 
in  order  that  the  same  may  be  properly  examined;" 
that  the  plaintiff  accepted  the  offer  of  the  defendant, 
and  forwarded  the  full  particulars  of  his  account,  and 
had  always  been  ready  and  offered  to  give  a  proper  in- 
printed  ticket,-froin  an  acceptance  of  the  ticket  without  objection,  see  Watkins 
V.  Ryniill,  10  Q.  B.  D.  178;  52  L.  J.  (Q.  B.)  121,  and  the  eases  there  cited. 
(0  5  M.  h  W.  535. 

170 


LECT.  IV.]  MUTUAL   ASSENT.  155 

demnification  to  J.  A.  and  the  defendant,  yet  the  de- 
fendant did  not  pay  the  composition :  this  declaration 
was  held  bad  upon  demurrer,  as  showing  nothing  more 
than  an  overture.  Indeed,  the  very  leaving  of  the 
terms  of  the  indemnity  open  shows  it  to  be  incomplete. 
Clearly  the  defendant  never  intended  to  *pay  ^ 

unless  he  got  such  an  indemnity  as  he  should  L  J 
think  proper,  not  what  the  plaintiff  or  a  third  person 
should  think  sufficient  (m). 

Again,  though  there  may  be  an  assent  to  the  terms 
of  the  proposed  contract  by  both  parties,  yet  if  one 
j)arty  is  induced  to  assent,  believing  through  the  fraud- 
ulent misrepresentation  of  the  other  that  that  other  is 
some  one  else  than  he  really  is,  then  there  is  no  con- 
tract because  there  is  no  agreement  as  to  who  the  j^arties 
are,  one  man  thinking  only  that  he  is  contracting  with 
another,  when  he  is  not  really  doing  so.  And  if  the 
man  thus  imposed  upon  furnishes  goods  under  such  a 
supposed  contract,  the  fraudulent  acquirer  cannot  give 
a  good  title  to  any  one  who  purchases  from  him,  though 
for  valuable  consideration  and  without  notice  of  the 
fraud,  unless  the  sale  be  in  market  overt.  This  is 
shown  by  the  recent  case  of  Lindsay  v.  Cundy.  There, 
one  Blenkarn  took  premises  at  37,  Wood  Street,  Lon- 
don, and  wrote  to  the  plaintiffs  at  Belfast,  ordering 
goods  of  them.  The  letters  were  dated  37,  Wood 
Street,  and  signed  "  A.  Blenkarn  &  Co.,"  in  such  a 
way  as  to  look  like  "A.  Blenkiron  &  Co.,"  there  being 
an  old  established  firm  of  Blenkiron  &  Sons  at  123, 
Wood  ''■•Street.  One  of  the  plaintiffs  knew  r:;:i  r^-i 
something  of  that  firm,  and  the  plaintiffs  entered  ^ 

(m)  Cope  V.  Albinson,  22  L.  J.  (Ex )  37 ;  8  Ex.  185 ;  M'lver  v.  Ricliardson, 
1  M.  &  S.  557 ;  Mozley  v.  Tinkler,  1  C.  M.  &  R.  692;  Russell  v.  Thornton,  29 
L.  J.  Ex.  9;  30  L.  J.  (Ex.)  69;  see  the  judgment  of  Kindersley,  V.  C,  in  Re 
Leeds  Banking  Company,  35  L,  J.  (Ch.)  75 ;  Oriental  Island  Steam  Company 
V.  Briggs,  31  L.  J.  (Ch.)  241. 

171 


157  SIMPLE  CONTRACTS.         [lECT.  IV. 

into  a  correspondence  with  Blenkarn,  and  ultimately 
supplied  the  goods  ordered,  addressing  them  to  "  A. 
Blenkiron  &  Co.,  37,  Wood  Street."  The  fraud  hav- 
ing been  discovered,  Blenkarn  was  indicted  and  con- 
victed for  obtaining  goods  by  falsely  pretending  that  he 
was  Blenkiron  &  Sons.  Before  the  conviction  the 
defendants  had  purchased  some  of  the  goods  bond  fide 
of  Blenkarn  without  notice  of  the  fraud,  and  re-sold 
them  to  other  persons.  The  plaintiffs  having  brought 
an  action  for  the  conversion  of  the  goods ;  it  was  held 
by  the  Court  of  Appeal  (?^),  reversing  the  judgment 
of  the  Queen's  Bench  Division,  and  afterwards  by  the 
House  of  Lords  (o),  affirming  the  judgment  of  the 
Court  of  Appeal,  that  the  plaintiffs  intended  to  deal 
with  Blenkiron  &  Sons,  and  therefore  there  was  no  con- 
tract with  Blenkarn ;  that  tlie  property  in  the  goods  never 
passed  from  the  plaintiffs,  and  that  they  were  accordingly 
entitled  to  recover  in  the  action.  But  mere  error  in 
the  absence  of  fraud,  as  to  the  person  with  whom  the 
contract  is  made,  only  annuls  the  contract  if  personal 
r*1  ^S1  considerations  enter  *into  it ;  if  the  person 
sought  to  be  bound  would  have  been  equally 
willing  to  make  the  same  contract  with  any  other  per- 
son, it  would  stand  {p)} 

(n)  Lindsay  v.  Cnndy,  2  Q.  B.  D.  96,  46  L.  J.  (Q.  B.  etc.)  233 ;  reversing  1 
Q.  B.  D.  348,  45  L.  J.  (Q.  B.  etc.)  SSL 

(o)  Cundy  v.  Lindsay,  3  App.  Gas.  459,  47  L.  J.  (Q.  B.,  etc.)  481  (H.  L.). 
And  see  Hardraan  v.  Booth,  1  H.  &  C.  803 ;  32  L.  J.  (Ex.)  105 ;  Higgons  v 
Burton,  26  L.  J.  (Ex.)  342. 

(p)  Smith  V.  Wheatcroft,  9  Ch.  Div.  223. 

^  Thus  a  contract  for  the  performance  of  particular  personal  services  is  not 
assignable  without  the  assent  of  the  parties:  Chapin  v.  Longworth,  31  Ohio 
St.  421 ;  so  that  when  an  author  agrees  with  a  particular  firm  to  publish  a 
forthcoming  work,  this  contract  cannot  be  assigned  by  the  publishers,  without 
the  author's  consent,  to  another  firm:  Hole  v.  Bradbury,  12  Ch.  Div.  886. 
"Where  the  defendants  had  been  in  the  habit  of  dealing  with  a  particular  per- 
son, who  was  in  debt  to  them,  and  they  sent  an  order  for  goods  intending  it 
to  be  filled  by  this  party,  but  it  came  into  the  hands  of  the  plaintifl^,  the  suc- 
cessor in  business  of  the  party  with  whom  they  had  been  in  the  habit  of 

172 


LECT.  IV.]  OFFER   AXD    ACCEPT AlfCE.  158 

The  assent  to  a  contract  must  be  to  the  precise  terms 
ottered.  Where  one  party  proposes  a  certain  bargain, 
and  the  other  agrees  subject  to  some  modification  or 
condition,  there  is  no  mutuality  of  contract  until  there 
has  been  an  assent  to  it  so  modified ;  otherwise  it  would 
not  be  obligatory  on  both  parties,  and  would  therefore 
be  void  {q).  There  is  a  clear  distinction  between  a 
mere  proposal  and  an  agreement  to  sell.  As  in  Cooke 
V.  Oxley,  where  the  defendant  offered  goods  to  the 
plaintiff  and  gave  him  till  four  o'clock  in  the  afternoon, 
the  plaintiff  did  not  within  the  time  express  that  he 
acceded  to  the  proposal,  and  was  therefore  held  not 
entitled  to  sue  the  defendant  for  non-delivery  of  the 
goods.  The  engagement  was  all  on  one  side,  and  the 
defendant  had  a  right  until  four  o'clock  to  sell  the  goods 
to  any  other  person  (r).  In  like  manner  r:{:i  f^qi 
*w^here  a  broker  sold  on  Saturday  certain  goods  "* 

of  the  defendant  to  the  plaintiff,  subject  to  the  plain- 
tiff's approval  of  the  quality  on  Monday,  and  sent  the 
sold  note  to  the  plaintiff  on  Saturday  marked  with  the 

(7)  Jordan  v.  Norton,  4  M.  &  W.  155;  Cooke  v.  Oxley,  3  T.  R.  653;  Be 
Leeds  Banking  Company,  Mallorie's  case,  36  L.  J.  (Ch.)  141  ;  L.  R.  2  Ch. 
181  ;  lie  Universal  Banking  Corporation,  ex  parte  Gunn,  37  L.  J.  (Ch.)  40; 
Re  Saloon  Steam  Packet  Co.,  ex  parte  Fletcher,  lb.  49.  But  a  binding  con- 
tract may  be  made  by  letters  or  other  writings,  although  they  may  contain  a 
reference  to  the  preparation  of  a  more  formal  contract  thereafter.  Bonnewell 
V.  Jenkins,  8  (Jh.  Div.  70 ;  47  L.  J.  (Ch.)  758;  Rossiter  v.  Miller,  3  App.  Cas. 
1124 ;  48  L.  J.  (Ch.)  10  (H.  L.) ;  Lewis  v.  Brass,  3  Q.  B.  D.  667. 

(r)  3T.R.  653. 

dealing  who  sent  the  goods,  it  was  held  that  the  plaintiff  could  not  recover 
their  price :  Bramwell,  B.,  said  :  "  When  a  contract  is  made,  in  which  the 
personality  of  the  contracting  party  is,  or  may  be,  of  importance,  as  a  con- 
tract with  a  man  to  write  a  book,  or  the  like,  or  where  there  might  be  a  set- 
off, no  other  person  can  interpose  and  adopt  the  contract "  :  Boulton  v.  Jones, 
2  H.  &  N.  564;  Boston  Ice  Co.  v.  Potter,  123  Mass.  28  ;  Paddock  t;.  Colby,  18 
Vt.  485.  On  the  other  hand  when  the  personal  character  of  the  party  dealt 
with  can  have  no  effect  upon  the  contract,  or  where  a  party  has  notice  with 
whom  he  is  dealing,  a  mistake  of  identity,  in  the  absence  of  fraud,  might  jus- 
tify the  rescission  of  the  contract,  but  not  its  avoidance  after  he  has  received 
the  goods :  Boston  Ice  Co.  v.  Potter,  8upra  ;  Mudge  v.  Oliver,  1  Allen,  74. 

173 


159  SIMPLE  CONTEACTS.        [lECT.  TV. 

words  "quality  to  be  approved  on  Monday,"  and  the 
plaintiff  not  having  approved  or  disapproved  on  the 
Monday,  the  broker,  a  few  days  after,  sent  the  sold 
note  to  the  defendant  with  those  words  struck  out,  and 
the  defendant  tlien  repudiated  the  engagement ;  it  was 
held  that  he  had  no  right  to  do  so,  for  the  plaintiff,  not 
having  signified  his  disapproval  on  Monday,  was  then 
bound  by  it,  and  the  engagement,  being  mutual,  was  a 
perfect  contract.  This  case,  it  will  be  observed,  differs 
from  Cooke  v.  Oxley,  which  was  an  offer  to  sell  not 
accepted  within  the  time  given.  Here  was  not  merely 
an  offer  to  sell,  but  the  buyer  had  an  option  of  re- 
nouncing the  purchase  on  Monday,  and  not  having 
renounced,  the  contract  had  become  absolute  (s).  The 
case  of  Routledge  v.  Grant  {t)  is  also  a  good  example 
of  this  principle.  Grant  offered  to  purchase  Kent- 
ledge's house,  requiring  possession  on  the  25th  of  July, 
and  a  definite  answer  in  six  weeks ;  Koutledge  accepted 
the  offer,  with  possession  on  the  1st  of  August;  Grant 
afterwards,  within  the  six  weeks,  retracted  his  offer,  and 
it  was  held  that  he  had  a  right  to  do  so. 

The  party  who  made  the  offer  has  a  right  to  say, 
r*l rO~l  '"  ^^^  ^^^^  infcedera  veni/'  and  to  decline  any 
other  bargain  than  that  which  he  offered. 
Where  an  offer  is  accej)ted  in  the  terms  in  which  it  was 
made,  the  contract  is  binding  on  both  parties.  At  any 
time  before  it  is  accepted  the  offer  may  be  rescinded, 
but  not  afterwards  {u).  The  importance  of  ascertai nine: 
accurately  that  the  offer  which  the  one  party  has  made 
has  not  been  altered  by  any  term  or  stipulation  intro- 
duced by  the  other  in  accepting  it,  is  so  great,  that 
another  example  or  two  will  be  useful.     Thus,  a  broker 

(s)  Humphreys  v.  Carvalho,  16  East,  45. 
(0  4  Bing.  (13  E.  C.  L.  R.)  653. 
(w)  Cooke  V.  Oxley,  3  T.  R.  653. 

174 


LECT.  IV.]     OFFER  AND  ACCEPTANCE.  160 

sold  to  Cowie,  of  Calcutta,  a  quantity  of  indigo,  and 
drew  up  a  sold  note  addressed  to  the  vendor,  who  hav- 
ing objected  to  a  particular  word,  Cowie  struck  his  pen 
through  it,  placing  his  initial  over  the  erasure,  and 
returned  it  to  the  broker,  who  delivered  it  so  altered  to 
the  vendor.  The  broker  afterwards  delivered  to  Cowie 
a  bought  note  which  differed  materially  from  the  sold 
note.  In  an  action  brought  by  the  vendor  against 
Cowie  for  non-performance  of  the  contract  as  stated  in 
the  sold  note,  the  Supreme  Court  at  Calcutta  considered 
that  the  sold  note  formed  the  contract,  and  found  for 
the  plaintiff;  but  the  Judicial  Committee  of  the  Privy 
Council,  upon  appeal,  considered  that  the  parties  in- 
tended the  bought  and  sold  notes  together  to  form  the 
agreement  between  the  parties,  notwithstanding  Cowie's 
alteration  of  the  sold  note,  and  consequently,  r>5:-|n-j-j 
that  '^there  being  a  material  variation  in  the 
terms  of  the  bought  and  sold  notes,  they  did  not  to- 
gether constitute  a  binding  contract  (x).  In  another 
case,  a  broker,  acting  for  the  plaintiff,  verbally  con- 
tracted to  buy  certain  hemp  of  the  defendant,  and  sent 
him  a  note  stating  the  terms,  commencing  thus  : — "  Sold, 
for  Campbell  (the  defendant),  to  Moore  (the  plaintiff), 
50  tons  of  Petersburgh  clean  hemp,  ex  G.  G.  to  arrive, 
at  £34  per  ton,  payment  at  the  option  of  the  buyer  by 
acceptance  on  London  at  six  months  from  delivery,  or 
cash  in  14  days  less  2i  per  cent.,  to  be  taken  from  the 
quay  at  the  landing  weights,  and  to  be  a  fair  average 
quality  of  the  season."  The  defendant  sent  back  an- 
other note  in  these  words : — "  I  have  this  day  sold, 
through  you,  to  M.  50  tons  Petersburgh  clean  hemp, 
expected  to  arrive  per  G.  G.  at  £34  per  ton  from  the 
quay.  If  the  ship  is  lost,  or  the  hemp  damaged  on  the 
voyage,  this  contract  to  be   considered   void   for   such 

(z)  Ccwie  V.  Eemfry,  5  Moore  (P.  C.)  232. 

175 


161  SIMPLE    CONTRACTS.  [lECT.  IV. 

quantity  as  may  be  lost  or  damaged.  The  quality  to 
he  of  an  average  of  the  season,  and  if  any  dispute  arises, 
the  same  to  be  settled  by  arbitration.  Payment,  six 
months'  acceptance,  or  cash  in  14  days  less  2h  per  cent, 
discount,  at  the  buyer's  option.  Customary  allowances." 
The  plaintiff  sued  for  non-delivery  of  the  hernj),  treat- 
ing the  note  signed  by  the  defendant  as  the  contract, 
and  it  was  held  that  the  liability  of  the  defendant 
r*lfi^"l  ^icpended  upon  the  ^question  of  fact,  whether 
the  note  signed  by  him  was  intended  by  both 
parties  to  be  the  contract,  in  which  case  lie  would  be 
liable,  or  whether  the  defendnnt  only  intended  to  be 
bound  as  the  seller,  provided  the  plaintiff  should 
also  sign  a  note  to  bind  himself  as  the  buyer.  "  If 
this  were  a  case,"  said  Parke,  B.,  in  delivering  the  judg- 
ment of  the  Court  of  Exchequer,  "  in  which  the  plain- 
tiff sought  to  prove  a  contract  by  means  of  bought  and 
sold  notes,  made  by  a  broker  for  both  parties,  he  must 
have  failed,  for  the  two  notes  disagree,  and  there  would 
have  been  no  valid  contract.  This,  however,  is  not  the 
ease  of  a  contract  entered  into  by  a  broker  for  the 
buyer  and  seller ;  the  person  wlio  made  the  contract  was, 
indeed,  a  broker,  but  he  acted  solely  for  the  plaintiff. 
The  plaintiff  then  insists  that  the  note  signed  by  the 
defendant  is  the  contract,  and  if  it  be  true  that  this  was 
intended  by  both  parties  to  be  the  contract  between 
them,  the  defendant  would  be  bound  as  a  party  to  be 
charged,  and  the  memorandum  would  be  sufficient 
within  the  Statute  of  Frauds.  But  if  Campbell,  the 
defendant,  never  intended  to  be  bound  as  the  seller 
unless  Moore  was  also  bound  as  the  buyer,  and  meant 
that  Moore  should  sign  the  note  on  his  part  to  bind 
him,  then  there  was  no  valid  contract  between  them  "  {y). 

(y)  Moore  v.  Campbell,  10  Ex.  323;  23  L.  J.  (Ex.)  310;  see  Hejworth  v. 
Knight,  33  L.  J.  (C.  P.)  298. 

176 


LECT.  I  V.J      OFFER  AND  ACCEPTANCE.  162 

That  the  acceptance  of  the  =-'offer,  in  order  to  be  p::j^g3-| 
binding,  must  not  be  qualified  by  any  fresh 
stipulation  not  contained  in  the  offer,  has  also  been 
strongly  shown  in  contracts  for  the  purchase  of  scrip 
and  shares.  These  contracts  are  often  made  by  letters, 
the  intended  purchaser  applying  by  letter  for  shares, 
and  the  answer,  after  complying  with  this  request,  going 
on  to  stipulate  that  the  shares  should  not  be  transfer- 
able, or  adding  some  term  not  contemplated  by  the 
applicant  (z).  In  such  cases,  in  the  absence  of  assent 
to  the  additional  stipulation,  the  contract  would  be  void ; 
and  no  such  allottee  could  be  sued  on  the  transaction,  for 
the  stipulation  was  clearly  not  implied  in  the  agreement 
to  take  the  shares. 

Where  the  offer  of  a  contract  is  made  by  letter,  the 
offerer  must  be  considered  as  making  during  every  in- 
stant of  the  time  his  letter  is  travelling  the  same  identical 
offer  to  the  receiver  (a).  In  like  manner  the  receiver's 
acceptance  of  the  contract  is  complete  when  in  due  time 
he  sends  his  answer.  This  due  time  is  ascertained  by 
the  usage  of  trade,  by  the  actual  stipulation  of  the  par- 
ties, or  by  what  is  a  reasonable  time  under  the  circum- 
stances (b).  When  the  post  is  either 'Mirectly  r-^-.p.-, 
or  impliedly  appointed  by  the  party  making  ^  -■ 
the  offer  to  be  the  channel  of  communication,  the  con- 
tract is  complete  when  the  letter  accepting  the  offer  is 
posted,  even  if  the  letter  of  acceptance  never  reaches  its 
destination.^     The  party  accepting  has  then  done  all  he 

(2)  Wontner  v.  Shairp,  4  C.  B.  (56  E.  C.  L.  R.)  404;  Walstab  v.  Spottiswood, 
15  M.  &  W.  501 ;  Vollans  v.  Fletcher,  1  Ex.  20 ;  Duke  v  Andrews,  2  Ex.  290 ; 
Chaplin  v.  Clarke,  4  Ex.  403 ;  lie  Direct  Birmingham  Railway  Company,  ex 
parte  Capper,  19  L.  J.  (Ch.)  394. 

(a)  Adams  v.  Lindsell,  1  B.  &  A.  681. 

(6)  Adams  v.  Lindsell,  supra;  Meynell  v.  Surtees,  25  L.  J.  (Cli.)  259. 

^  In  Lewis  v.  Bro^vning,  130  Mass.  173,  Gray,  C.  J.,  said :  "  In  M'CuUoch  v 
Eagle  Ins.  Co.,  1  Pick.  278,  this  Court  held  that  a  contract  made  by  mutual 

12  177 


164  SIMPLE    CONTRACTS.  [lECT.    IV. 

was  bound  to  do  {c).  Until  acceptance,  the  offerer  may 
revoke  his  offer  {d)  ;  hut  the  revocatir>n,  in  order  to 
operate  as  such,  must  be  communicated  to  the  party  to 
whom  the  offer  has  been  made  before  the  latter  has 
accepted  it.  For  example,  merely  posting  a  letter  of 
revocation  which  does  not  reach  the  party  to  whom  the 
offer  is  made  till  after  the  latter  has  posted  a  letter  of 
acceptance,  would  not  be  sufficient  {e).  The  acceptance 
Pifi'S'l  ^^  ^^^®  offer,  in  order  to  be  '''binding,  must,  as  we 
have  already  seen,  not  be  qualified  by  some 
stipulation  not  contained  in  the  offer.  It  is  perhaps 
hardly  necessary  to  add  that  the  law  as  to  the  accept- 
ance and  retraction  of  offers  is  the  same  mutatis  mutandis_ 

(c)  So  held  in  Household  Fire  Insurance  Co.  v.  Grant,  4  Ex.  Div.  21 G,  48  L. 
J.  (Q.  B.,  etc.)  577,  by  a  majority  of  the  Court  of  Apjjeal  (Tkesiger  and  Bag- 
gallay,  L.  JJ.,  dissentiente  Bramwell,  L.  J.).  This  case  overrules  Tlie  British 
and  American  Telegraph  Co.  i'.  Colson,  L.  E.  6  Ex.  108;  40  L.  J.  (Ex.)  97. 
See  also  Dunlop  v.  Higgins,  1  H.  of  L.  C.  381  (where,  however,  the  letter  of 
acceptance  did  reach  its  destination,  though  after  a  delay  caused  by  cir- 
cumstances over  which  the  sender  had  no  control) ;  Re  Imperial  Land  Co.  of 
Marseilles,  Harris's  case,  L.  R.  7  Ch.  App.  587 ;  41  L.  J.  (Ch.)  621 ;  Wall's 
case,  re  the  same  Company,  L.  R.  15  Eq.  18;  42  L.  J.  (Ch.)  372. 

(d)  Cooke  V.  Oxley,  3  T.  R.  653 ;  Routledge  v.  Grant,  4  Bing.  (13  E.  C.  L.  R.) 
653 ;  Warner  v.  Harrison,  28  L.  J.  (Q.  B.)  18. 

(e)  Byrne  v.  Van  Tienhoven,  5  C.  P.  D.  344;  49  L.  J.  (C.  P.)  316;  Steven- 
son V.  McClean,  5  Q.  B.  D.  346 ;  49  L.  J.  (Q.  B.)  701 ;  Re  Imperial  Land  Com- 
pany of  Marseilles,  Harris's  case,  L.  R.  7  Ch.  App.  587;  41  L.  J.  (Ch.)  621. 

letters  was  not  complete  until  the  letter  accepting  the  offer  had  been  received 
by  the  person  making  the  offer;  and  the  correctness  of  that  decision  is  main- 
tained, upon  an  able  and  elaborate  discussion  of  reason  and  authorities,  in 
Langdell  on  Contracts  (2d  ed.),  989-996.  In  England,  New  York,  and  New 
Jersey,  and  in  the  Supreme  Court  of  the  United  States,  the  opposite  view  has 
prevailed,  and  the  contract  has  been  deemed  to  be  completed  as  soon  as  the 
letter  of  acceptance  has  been  put  into  the  post-office  duly  addressed.  [He 
cited  the  English  cases  referred  to  in  the  text  and  also]  2  Kent  Com.  477  note 
c. ;  Mactier  v.  Frith,  6  W^end.  103 ;  Vassar  v.  Camp,  1  Kernan,  441 ;  Trevor  v. 
Wood,  36  N.  Y.  307 ;  Hallock  v.  Commercial  Ins.  Co.,  2  Butcher,  268,  and  3 
Dutcher,  645 ;  Tayloe  v.  Merchants'  Ins.  Co.,  9  How.  390.  But  this  case  does 
not  require  a  consideration  of  the  general  question  ;  for,  in  any  view,  the  per- 
son making  the  offer  may  always,  if  he  chooses,  make  the  formation  of  the 
contract  which  he  proposes  dependent  upon  the  actual  communication  to  him- 
eelf  of  the  acceptance." 

178 


LECT.  IV.]  COXSIDERATIOJf   OF    PROMISES.  165 

wliatever  be  the  means  of  communication  employed.^ 
"  It  cannot  make  any  difference  whetlier  the  negotiation 
is  carried  on  by  post,  by  telegraph,  or  by  oral  message. 
If  the  offer  is  not  retracted,  it  is  in  force  as  a  continuing 
offer  till  the  time  for  accepting  or  rejecting  it  has 
arrived.  But  if  it  is  retracted  there  is  an  end  of  the 
proposal"  (/). 

I  have  already  stated  to  you  that  one  of  the  main  dis- 
tinctions between  a  contract  by  deed  and  a  simple  con- 
tract is,  that  the  latter  requires  a  consideration  to  support 
it,  the  former  not.^  And  here  it  is  proper  to  observe, 
incidentally,  that  when  I  say  that  a  contract  by  deed 
does  not  require  a  consideration  to  support  it,  I  mean  to 
say  that  it  does  not  require  a  consideration  for  the  pur- 
])OBQ  of  binding  the  party  who  executes  it,  and  rendering 
him  liable.  I  do  not  by  any  means  intend  that  you 
should  understand  that  a  consideration  may  not  come  to 
be  a  most  im2)ortant  ingredient  in  a  contract  by  deed,  as 
betw^een  parties  claiming  a  benefit  under  that  deed  and 
other  parties  having  conflicting  claims  upon  the  person 

(/)  Per  Lush,  J.,  in  Stevenson  v.  McClean,  5  Q.  B.  D.  346,  351  ;  49  L.  J. 
(Q.  B.)  701,704. 

^  As  to  contracts  by  letter,  see  Abbott  v.  Shepard,  48  N.  H.  14 ;  Stockhara 
V.  Stockham,  32  Md.  196  ;  Brown  v.  N.  Y.  C.  E.  11.  Co.,  44  N.  Y.  79 ;  Chicago 
R.  R.  Co.  V.  Dane,  43  lb.  240 ;  Knight  v.  Cooley,  34  Iowa,  218.  As  to  contracts 
by  telegraph,  see  Trevor  v.  Wood,  41  Barb.  255 ;  36  N.  Y.  307  ;  Beach  v.  Rari- 
tan  R.  R.  Co ,  37  N.  Y.  457  ;  "Wells  v.  Milwaukee  R.  R.  Co.,  30  Wis.  605  ; 
Duble  V.  Batts,  38  Tex.  312;  Deshon  v.  Fondick,  1  Wood,  286.  [See  page  *96 
as  to  the  application  of  the  Statute  of  Frauds  to  contracts  by  Telegraph.] — s. 

^  Upon  the  important  subject  of  the  rise  and  development  of  the  doctrine  of 
consideration  recent  research  has  thrown  much  light.  The  subject  cannot 
be  adequately  treated  in  this  place,  but  a  few  references  may  be  useful  to  the 
student  who  desires  further  information.  The  most  learned  discussion  of  the 
subject,  historically  and  pliilosophically,  is  that  of  Professor  Holmes  (Common 
Law,  Lectures  VII.  and  VIII. ).  For  an  analysis  of  the  case  law  see  Professor 
Langdell's  Select  Cases  on  Contracts,  and  for  a  clear  statement  of  tlie  principles 
of  the  modern  law  see  his  Summary  of  the  Law  of  Contracts,  |^  45-98.  See 
also  Judge  Hare's  "  Notes  of  a  Course  of  Lectures  on  Contracts,"  Lect.  I.,  and, 
generally,  the  recent  writers  on  contracts,  Anson,  Leake,  Pollock,  and  Whai- 
ton. 

179 


165  COXSTDERATION    OF    PROMISES,  [lECT.  IY. 

executing  it.     For  instance,  the  statute  of  the  13th  Eliz. 
PifiPI    ^'  ^'  *^'6^^^i's  ^  great  variety  of  deeds  (if  made 

without  a  valuable  consideration)  void  as  against 
creditors ;  and  this  statute  (which  Lord  Mansfield  lias 
said  is  only  declaratory  of  the  Common  Law)  is  founded 
on  a  perfectly  righteous  and  equitable  principle ;  for 
how  absurd  and  unjust  would  it  be  to  allow  a  man  to 
defeat  the  claims  of  his  real  creditors  by  entering  into 
obligations  to  persons  who  had  never  parted  with  any 
value  at  all.  When,  therefore,  I  say  that  a  deed  is  good 
without  consid.eration,  I  do  not  mean  to  say  that  it  stands 
for  all  purposes  on  the  same  footing  as  an  instrument 
for  which  value  has  passed ;  but  what  I  mean  that  you 
should  understand  is  this — that  where  the  interests  of 
third  parties  are  not  affected,  but  the  question  is  be- 
tween the  person  who  entered  into  the  contract  and  the 
person  with  whom  it  is  made,  there  a  man  cannot  defend 
himself  against  a  promise  made  by  deed,  by  saying  that 
he  received  no  consideration  for  it,  although  he  might 
defend  himself  upon  that  ground  against  the  very  same 
promise  if  it  had  been  made  by  simple  contract.  I  can- 
not, I  think,  put  a  better  example  of  this  than  that 
which  I  put  in  a  former  lecture: — A.  owes  B.  £50. 
Now,  if  I  write  upon  a  piece  of  paper  as  follows  : — 
"  I  promise  A.  that  I  will  discharge  for  him  the  debt 
due  from  him  to  B.," 
and  give  him  the  paper  so  written,  here  is  a  simple  con- 
tract without  any  consideration  for  it;  and,  if  I  fail  to  per- 
r*l  fi7l   form  the  promise,  no  action  will  lie  against  *me, 

because  a  simple  contract  founded  upon  no  con- 
sideration cannot  be  enforced  :  and  yet,  if  I  had  sealed 
that  very  slip  of  paper,  and  delivered  it  to  A.  as  my  act 
and  deed,  an  action  would  have  lain  against  me  had  I 
afterwards  failed  in  j^erforming  it ;  and  to  that  action  it 
would  have  been  no  defence  to  say  that  I  received  no 
180 


LECT.  rV.]         CONSIDERATION    OF    PROMISES.  1G7 

consideration  for  mv  undertaking; :  I  mio-ht  sav,  that  I 
had  been  imposed  upon,  and  persuaded  to  execute  it  by 
A.'s  fraud ;  or  I  might  say,  that  the  debt  due  to  B.  was 
an  illegal  one,  and  that  my  promise  was  made  in  pursu- 
ance of  an  illegal  arrangement ;  but  that  the  promise 
was  without  consideration  would  be  a  defence  of  which, 
the  contract  being  by  deed,  I  could  not  be  allowed  to 
avail  myself.^ 

But  a  simple  contract  is,  as  I  have  said,  incapable  of 
becoming  the  subject  of  an  action  unless  supported  by 
a  consideration.^  Ex  nudo  pacto  non  oritur  actio  is  an 
old  and  well-established  maxim  of  our  law,  as  well  as 
of  the  civil  law,  and  has  been  illustrated  by  a  great 
variety  of  cases  from  time  to  time  (g)  :  thus  it  has  been 
laid  down  by  Lord  Kenyon  (A),  that  a  promise  made  by 
the  captain  of  a  ship  to  one  of  his  seamen,  when  the 
ship  was  in '••'extraordinary  danger,  to  pay  him  r:;:ir.o-i 
an  extra  sum  of  money  as  an  inducement  to  extra 
exertion,  was  a  void  promise;  because  every  seaman  is 
bound  to  exert  himself  to  the  utmost  for  the  safety  of  the 
shij),  and  therefore  the  captain  would  get  nothing  from  the 
seaman  in  exchange  for  his  promise  except  that  which 
the  seaman  was  bound  to  do  before.^     And  it  has  been 

iy)  Westhead  v.  Sproson,  30  L.  J.  (Ex.)  265  ;  McManus  v.  Bark,  L.  E.  5  Ex. 
65  ;  39  L.  J.  (Ex.)  65.     See  also  Dashwood  v.  Jermyn,  12  Ch.  Div.  776. 

{h)  Harris  v.  Watson,  Peake,  72;  Harris  v.  Carter,  23  L.  J.  (Q.  B.)  295;  3 
E.  &  B.  (77  E.G.  L.  E.)  559.  See  Clutterbuck  v.  Coffin,  3  M.  &  G.  (42  E.  C. 
L.  E.)  842 ;  Hartley  v.  Ponsonby,  26  L.  J.  (Q.  B.)  322. 

'  It  has  been  before  stated,  that  in  some  of  the  United  States,  the  obligor 
of  a  specialty  is,  by  statutory  enactment,  permitted,  under  some  restrictions, 
to  show  its  failure,  as  at  common  law,  he  could  its  illegality  of  considera- 
tion.— R. 

="  Ames  V.  Taylor,  49  Afe.  381  ;  Eichardson  v.  Williams,  lb.  558;  Dorwin  v. 
Smith,  35  Vt.  69;  Smith  r.  Eogers.  lb.  140  ;  Xewhall  r.  Paige,  10  Gray,  316; 
Carr  v.  Card,  34  Mo.  513 ;  Conover  v.  Still  well,  34  X.  J.  54;  Glascow  v.  Hobbs, 
32  Ind.  440 ;  Worth  v.  Carr,  42  N.  Y.  362.— s. 

^  And  to  the  same  effect  were  Newman  v.  Walters,  3  B.  &  P.  612;  Stilk  v. 
Myrick,  2  Camp.  317;  Smith  i.  Bartholomew,  1  Mete.  278.     [Robb  v.  Mann, 

181 


168  CONSIDERATIOX    OF    PROMISES.         [lECT.  IV. 

held,  that  interest,  being  by  merchantile  usage  payable 
upon  balances,  an  agreement  in  consideration  of  interest 
upon  a  balance  to  give  an  extended  time  for  paying  it, 
was  merely  void  {i).  The  documents  put  in  by  the 
defendant,  said  Parke,  B.,  showed  that  interest  was  pay- 
able at  the  time  of  the  contract,  and  therefore  there 
was  no  consideration  for  that  contract. 

The  reason  for  the  strictness  with  which  this  rule  of 
law — that  there  must  be  a  consideration  to  suj)port  a 
simple  contract — is  enforced,  is,  to  guard  persons 
against  being  drawn  hastily  and  inconsiderately  into 
engagements  which  may  prove  ruinous  to  them.  The 
law  does  not  absolutely  j)rohibit  them  from  contracting 
a  gratuitous  obligation,  for  they  may,  if  they  will,  do 
that  by  deed ;  and  it  is  thought  that,  a  deed  being  an 
instrument  requiring  more  of  ceremony  and  formality, 
and  sealing  being  considered  all  over  Christendom  as 
an  act  of  much  solemnity,  and  as  suggesting  the 
r===irQ1  ^contract  to  be  extraordinary  and  important, 
more  opportunity  for  thought  is  afforded  to  the 
party  executing  it  than  to  a  person  entering  into  a 
simple  contract,  and,  consequently,  that  it  is  not  un- 
reasonable to  give  it  a  more  stringent  operation. 

The  reason  of  the  law  of  England  on  this  point — 
one  of  the  most  important  in  our  entire  system — is 
very  clearly  explained  in  the  judgment  of  the  Court 
of  Queen's  Bench  in  Eastwood  v.  Kenyon  {k),  the  case 
which  I  before  mentioned  with  reference  to  the  4th  sec- 
tion of  the  Statute  of  Frauds. 

The  Lord  Chief  Justice  remarks,  in  that  case,  that 

(i)  Orme  v.  Galloway,  23  L.  J.  (Ex.)  118;  9  Ex.   544.     See  also  Beer  r. 
Foakes.  11  Q.  B.  D.  22 1 ;  52  L.  J.  (Q.  B.)  712,  reversing  lb.  426. 
(^•)  11  Ad.  &  E.  (39  E.  C.  L.  R.)  438,  450;  9  L.  J.  (Q.  B.)  409,  412. 


11  Pa.  St.  300;  Gilmore  v.  Green,  14  Bush,  772;  Bryan  v.  Brazil,  52  Iowa, 
?oO.]— R. 

182 


LECT.  IV.]        CONSIDERATION   OF    PROMISES.  169 

*'  tlie  eminent  counsel  who  argued  for  the  plaintiff  in 
Lee  V.  Muggeridge  (l),  spoke  of  Lord  Ilansfield  as 
having  considered  the  rule  of  7iudum  pactum  too  nar- 
row, and  maintained  that  all  promises  deliberately  made 
ought  to  be  binding  at  law ;  as  they  certainly  are  in 
honor  and  conscience."  But  the  Chief  Justice  con- 
tinues :  "  The  enforcement  of  such  promises  at  law, 
however  plausibly  reconciled  by  the  desire  to  carry 
into  effect  all  conscientious  engagements,  might  be  at- 
tended with  mischievous  consequences  to  society — one 
of  which  would  be  the  frequent  preference  of  voluntary 
undertakings  to  claims  for  just  debts.^  Suits  would 
thereby  be  multiplied,  and  voluntary  undertakings 
would  be  also  multi2:)lied,  to  the  prejudice  of  real 
^creditors.  The  temptations  of  executors  [^-^nr)-] 
would  be  much  increased  by  the  j)revalence  of 
such  a  doctrine,  and  the  faithful  discharge  of  their  duty 
be  rendered  more  difficult." 

Perhaps,  it  may  be  added,  that  if  this  rule  were  not 
law,  an  expression  of  present  intention,  of  mere  good 
will,  of  no  more  than  opinion  {m),  or  even  a  civil  and 
indirect  refusal,  would  continually  be  made  the  grounds 
of  actions ;  for  no  one  can  have  seen  much  of  society, 
or  attended  much  in  Courts  of  Justice,  without  having 
observed  how  frequently  such  expressions  are  taken  by 
the  recipient  in  a  sense  very  much  more  favourable  to 
his  interests  and  wishes  than  they  were  intended  by  the 
utterer  to  bear  (n). 

(/)  5  Taunt.  (1  E.  C.  L.  R.)  36.  The  counsel  were  Mr.  Serjt.  Lens,  and  Mr. 
Serjt.  Best,  afterwards  Lord  Wynford. 

(m)  Nicholson  v.  Ricketts,  29  L.  J.  (Q.  B)  95. 

(n)  See  Puffendorff's  Law  of  Nature,  B.  3,  cap.  5 ;  and  Shadwell  v.  Shadwell, 
30  L.  J.  (C.  P.)  97. 

^  Thus  services  voluntarily  done  by  one  for  another,  without  his  privity  or 
consent,  afford  no  ground  for  an  action,  however  meritorious  they  may  be,  as, 
for  instance,  in  saving  his  property  from  fire :  Bartholomew  v.  Jackson,  20 

183 


170  CONSIDERATION   OF   PROMISES.        [lECT.  IV. 

Now,  with  regard  to  the  question —  What  does  the  law 
of  England  recognize  as  a  coiisidei^ation  capable  of  sup- 
porting a  simple  contract?  Tlie  best  and  most  practical 
answer  is, — Any  benefit  to  the  person  making  the  promise^ 
or  any  loss,  trouble,  or  inconvenience  to,  or  charge  upon  the 
person  to  whom  it  is  made}  Sir  Wm.  Blackstone,  in  the 
second  volume  of  his  Commentaries  (p.  444) ,  following  the 
arrangement  of  the  civilians,  divides  considerations  into 
four  classes:  1st.  Do  ut  des,  where  I  give  something 
that  something  may  be  given  to  me;  2d.  Facio  ut 
r^-inyx  facias,  where  I  do  something  that  "^"something 
may  be  done  for  me ;  3d.  Facio  ut  des,  where  I 
do  something  that  something  may  be  given  to  me ;  and 
4th.  Do  ut  facias,  where  I  give  something  that  some- 
thing may  be  done  for  me.  Divisions  of  this  sort  are 
useful  for  the  sake  of  arranging  our  ideas,  and  testing 
their  clearness ;  but  the  short  practical  rule  is,  as  I 
have  said,  that  any  benefit  accruing  to  him  who  makes 
the  promise,  or  any  loss,  trouble,  or  disadvantage  under- 
gone  by,  or  charge  imposed  upon,  him  to  whom  it  is 

Johns.  28 ;  or  by  doing  additional  work  to  a  particular  job :  Hart  v.  Norton, 
1  M'Cord  22.— R. 

^  The  statement  in  the  text,  altliough  it  is  the  commonly  accepted  form  of 
definition  of  consideration,  cannot  be  allowed  to  pass  without  criticism.  The 
more  careful  analysis  of  some  of  the  modern  writers  on  this  subject  has  elimi- 
nated one  of  the  terms  of  tiie  definition  and  only  admits  detriment  to  the  prom- 
isee as  a  valid  consideration.  This  of  course  refers  to  detriment  in  a  legal 
sense,  i.  e.,  the  doing  of  something  which  the  promisee  was  not  legally  bound 
10  do,  or  the  omission  to  do  something  which  he  had  the  legal  right  to  do. 
This  constitutes  a  valid  consideration  for  the  promise  of  the  other  party 
made  in  exchange  for  it,  and  the  contract  is  complete.  But  unless  this  ele- 
ment be  present  the  contract  is  imperfect,  for  consideration  is  wanting ;  no 
matter  how  great  the  advantage  experienced  by  the  promisor,  the  promisee 
cannot  enforce  the  promise  unless  he  has  contributed  to  that  benefit  by  some 
vohmtary  act  or  forbearance,  something  done  or  sufiered,  on  his  part.  In 
effect  this  is  only  another  way  of  stating  the  rule  (which  is  explained  infra 
*175)  that  the  consideration  must  move  from  the  promisee — nothing  done  by 
C.  will  support  a  promise  by  A.  to  B.  See  Langdell,  Summary  of  the  Law  of 
Contracts,  §?  62,  63 ;  Wharton,  Contracts,  ^  505  ;  Holmes,  Common  Law,  Lect. 
711. 

184 


LECT.  IV.]        COXSIDEEATION   OF   PROMISES.  171 

made,  is  a  sufficient  consideration  in  the  eye  of  the  law 
to  sustain  the  promise.  Thus,  let  us  suppose  I  promise 
to  pay  B.  £50  at  Christmas.  Now,  there  must  be  a 
consideration  to  sustain  this  promise.  It  may  be  that 
B.  has  lent  me  £50 :  here  is  a  consideration  by  way  of 
advantage  to  me.^  It  may  be  that  he  has  performed, 
or  has  agreed  to  perform,  some  laborious  service  for  me : 
if  so,  here  is  a  consideration  by  way  of  inconvenience 
to  him,  and  of  advantage  to  me  at  the  same  time.  It 
may  be  that  he  is  to  labour  for  a  third  person  at  my 
request :  here  will  be  inconvenience  to  him  without 
advantage  to  me :  or,  it  may  be  that  he  has  become 
surety  for  some  one  at  my  request ;  here  is  a  charge 
imposed  upon  him.  Any  of  these  will  be  a  good  con- 
sideration to  sustain  the  promise  on  my  part.  Illustra- 
tions of  this  rule  you  may  collect  from  various  instances, 
among  which  I  will  refer  you  to  Williamson  v.  Clem- 
ents (o),  where  the  defendant  being  indebted  '^'to  nj:-,  nn■^ 
the  plaintiff  on  a  bill  of  exchange  endorsed  to 
him,  the  plaintiff  having  lost  that  bill,  gave  to  the  de- 
fendant, at  his  request,  a  bond  acknowledging  that  the 
bill  was  paid,  and  containing  a  condition  for  indemni- 
fying the  defendant  against  his  afterwards  being  com- 
pelled to  pay  the  bill ;  and  the  defendant,  in  considera- 
tion thereof,  promised  the  plaintiff  to  pay  him  the 
amount  of  the  bill.  It  will  be  observed,  that  it  was  a 
detriment  to  the  plaintiff  to  acknowledge  the  bill  to 
have  been  paid,  since  he  thereby  gave  up  any  claim 
upon  the  bill  which  he  might  otherwise  have  had  if  he 
had  found  it.  So  in  Whitehead  v.  Greetham,  decided 
in  the  Exchequer  Chamber  {p),  the  declaration  stated 
that  the  plaintiff  had  retained    the  defendant  at  his 

(o)  1  Taunt.  523. 

(p)  2  Bing.  (9  E.  C.  L.  K.)  464 ;  Shillibeer  v.  Glyn,  2  M.  &  W.  143. 

*  Obviously,  however,  of  equal  disadvantage  to  B. 

185 


]  72  CONSIDEKATION    OF   PROMISES. .        [lECT.  IV. 

request  to  lay  out  £700  iu  the  purchase  of  an  annuity 
for  him ;  that  the  defendant  promised  to  lay  it  out 
securely,  and  that  the  plaintiif  delivered  him  the 
money  for  that  purpose ;  and  the  Court  held  that  there 
was  a  good  consideration  for  that  promise.  It  was 
clearly  a  detriment  to  the  plaintift'  to  part  with  his 
£700.  In  another  instance,  one  Charles  Kennedy 
being  indebted  to  the  firm  of  Boeme  and  Smout,  and 
the  plaintiff  having  been  appointed  by  the  Court  of 
Chancery  receiver  of  the  debts  due  to  the  firm,  in  con- 
sideration that  the  plaintiff  would  give  C.  Kennedy 
two  months'  time  to  pay,  the  defendant  promised  the 
r*1 7^1  pl^^itiff  to  pay  him  at  the  ^expiration  of  that 
period  should  C.  Kennedy  not  do  so.  Here  it 
is  observable,  that  the  plaintiff  did  not  interfere  as  a 
stranger  in  the  concerns  of  the  firm  for  which  he  was 
appointed  receiver.  It  was  his  duty  to  require  the 
debtor  to  pay,  and  the  duty  of  the  debtor  to  pay  him. 
The  contract,  therefore,  to  forbear  to  proceed  against 
the  debtor  was  a  contract  from  which  the  plaintiff 
might  incur  a  detriment,  and  it  is  a  sufficient  considera- 
tion for.  a  contract  if  one  party  receives  a  benefit,  oi 
the  other  is  exposed  to  a  detriment  from  it  {q).  By  a 
similar  course  of  reasoning,  the  case  of  Hartley  v.  Pon- 
sonby  was  decided, — a  case  so  nearly  i-esembling  in 
its  circumstances  that  of  Harris  v.  Watson,  recently 
mentioned  (r),  that  many  were  startled  by  the  decision, 
as  if  it  had  been  inconsistent  with  the  latter.  A 
ship  being  on  a  voyage  from  Liverpool  to  Port  Philip 
and  back,  when  in  Port  at  P.,  became  so  short  handed 
that  it  was  dangerous  to  life  to  proceed  with  only  the 

(q)  Willatts  V.  Kennedy,  8  Bing.  (21  E.  C.  L.  R.)  5 ;  Bunn  v.  Guy,  4  East, 
190;  Surtees  v.  Lister,  30  L.  J.  (Ex.)  369;  Cooke  v.  Wright,  30  L.  J.  (Q.  B.) 
32 ;  Scotson  v.  Pegg,  30  L.  J.  (Ex.)  225. 

(r)  Ante,  p.  *1G7. 

186 


LECT.  IV.]         CONSIDEKATIOjS"   OF    PROMISES.  173 

reduced  crew.  The  captain  being  unable  to  procure 
additional  hands,  promised  the  able  seamen  remaining, 
who  were  under  articles  for  the  whole  voyage,  an  ad- 
tional  sum  if  they  w^ould  assist  in  taking  the  ship  to 
the  next  port.  It  was  held  that  the  seamen  were  not 
bound  to  proceed  on  the  voyage,  as  it  involved 
*risk  of  life,  and  that  the  promise  was  therefore  r:!:-j  -  .-i 
not  nudum  i:)actum,  and  was  binding  on  the 
captain  [&).  In  this  case,  it  will  be  observed  that  the 
proceeding  in  the  ship  which  had  been  rendered  unfit 
for  the  voyage  by  the  loss  of  a  portion  of  the  crew  was 
not  obligatory  on  the  remainder,  but  was  a  detriment 
to  them  wliich  they  had  not  engaged  to  undergo ;  as 
well  as  a  benefit  to  the  caj)tain  which  he  was  not  entitled 
to  demand.  In  a  more  recent  case  the  defendant  being 
in  the  employment  of  the  plaintiffs  in  one  capacity, 
agreed  with  them  to  serve  them  in  another,  it  being 
understood  at  the  time  that  the  terms  of  their  agreement 
should  be  reduced  into  writing.  He  thereupon  entered 
into  the  latter  employment,  and  being  in  it  the  written 
agreement  was  signed  by  him  stating  that  in  considera- 
tion of  his  entering  into  the  plaintiff's  employment  at 
such  a  salary,  he  thereby  agreed  to  do  so,  with  the 
understanding  that  if  he  performed  similar  services  for 
any  other  on  the  same  ground  he  should  pay  the  plain- 
tiffs the  sum  of  £50.  It  was  argued  that  having 
already  entered  on  his  new  employment  before  he 
signed  the  agreement,  he  was  in  their  employ  on  an 
implied  contract,  to  serve  them  on  his  part,  and  to  be 
paid  on  theirs,  and  consequently  that  the  superadded 
restriction  not  to  serve  other  persons  was  without  con- 
sideration. But  it  is  clear,  and  was  so  considered  by 
the  *Court  of  Common  Pleas,  that  the  agree-  r^i^c-i 
ment  was  not  perfected  till  it  was  signed,  and 

(s)  26  L.  J.  (Q.  B.)  322,  7  E.  &.  B.  (90  E.  C.  L.  R.)  872. 

187 


175  CONSIDERATION   OF   PROMISES.         [lECT.  IV. 

that  if  he  had  refused  to  sign  it  the  plaintiffs  might 
have  refused  to  employ  him  any  longer,  and  conse- 
quently that  the  consideration  was  really,  as  stated  in 
the  written  agreement,  his  entering  into  the  plaintiff's 
emj)loyment  at  such  a  salary  [t). 

In  strict  agreement  with  what  has  been  said,  this 
consideration  must  proceed  from  the  party  to  whom  the 
promise  is  made.  If  it  proceed  from  some  third  per- 
son, not  in  any  way  moved  or  affected  thereto  by  the 
promisee,  the  latter  is  a  stranger  to  the  consideration, 
and  a  promise  made  to  him  is  nudum  pactum.  Thus, 
in  the  case  of  Thomas  v.  Thomas  {u),  an  action  was 
brought  upon  an  agreement  between  the  executor  of 
A.  B.  and  the  widow  of  the  testator,  which  set  out  that 
the  testator  had  declared  his  wish  that  his  widow  should 
enjoy  certain  premises  for  her  life,  and  that  it  was 
agreed,  in  consideration  of  such  desire  and  of  the 
premises,  that  the  executor  should  convey  them  to  the 
widow,  provided  she  would  pay  £1  towards  the  ground 
rent  of  those  and  certain  other  premises,  and  keep  the 
premises  conveyed  in  good  repair ;  and  it  was  contended, 
that  the  real  consideration  of  the  executor's  j)romise  was 
the  desire  to  comj^ly  with  the  wish  of  the  testator.  The 
-,   Court  ^considered  this  no  part  of  the  considera- 

r  1761  .  ... 

*-  -J  tion.  "  Consideration,"  said  Mr.  Justice  Patte- 
son,  "  means  something  which  is  of  some  value  in  the 
eyes  of  the  law  moving  from  the  plaintiff.  It  may  be 
of  some  benefit  to  the  plaintiff,  or  some  detriment  to  the 
defendant,  but  at  all  event-s,  it  must  be  moving  from  the 
plaintiff.  Now,  that  which  is  suggested  as  the  con- 
sideration here,  a  pious  respect  for  the  wishes  of  the 
testator,  does  not  in  any  way  move  from  the  plaintiff; 

(0  Muraford  v.  Gething,  29  I..  J.  (C.  P.)  103. 

(u)  2  Q.  B.  (42  E.  C.  L  E.)  851.    See  Price  v.  Easton,  4  B.  &  Ad.  (24  E.  C. 
L.K.)433. 

188 


LECT.  IV.]        CONSIDEEATION   OF    PROMISES.  176 

it  moves  from  the  testator,  and,  therefore,  legally  speak- 
ing, it  forms  no  part  of  the  consideration."  The  follow- 
ing case  also  proceeds  on  the  same  ground.  Very  soon 
after  a  marriage  between  the  plaintiff  and  the  daughter 
of  A.,  the  fathers  of  both  parties  agreed,  in  order  to 
supply  a  marriage  portion,  to  pay  each  of  them  a  sum 
of  money  to  the  plaintiff,  and  that  the  plaintiff  should 
have  full  power  to  sue  for  both  sums,  but  the  agree- 
ment was  made  by  and  between  the  two  fathers  only. 
After  the  deaths  of  both,  the  plaintiff  sued  the  executor 
of  A.  for  the  sum  which  he  had  agreed  to  pay,  but  he 
was  not  allowed  to  succeed,  as  he  was  no  party  to  the 
agreement,  and  no  consideration  moved  from  him  {x). 

Provided  there  be  some  benefit  to  the  contractor,  or 
some  loss,  trouble,  inconvenience,  or  charge,  imposed  uj)on 
the  contractee,  so  as  to  constitute  a  consideration,  the 

Courts  are  not  willing  to  enter  "''into  the  ques-    ^. 

•  •  •       P'1771 

tion  whether  that  consideration  be  adequate  in    ^         -' 

value  to  the  thing  which  is  promised  in  exchange  for 

it.^     Very  gross  inadequacy,  indeed,  would  be  an  index 

(z)  Tweddle  v.  Atkinson,  30  L.  J.  (Q.  B.)  265. 

^  Hubbard  v.  Coolidge,  1  Mete.  93 ;  Osgood  v.  Franklin,  2  Johns.  Ch.  23  ;  s. 
C.  14  Johns.  527  ;  Bedel  v.  Loomis,  11  N.  H.  9.  "  If  a  contract  is  deliberately 
made  without  fraud,"  said  Wilde,  J.,  in  Train  v.  Gold,  5  Pick.  384,  "  and  with 
a  full  knowledge  of  all  the  circumstances,  the  least  consideration  will  be  suf- 
ficient."— R. 

"A  consideration  is  sufficient,"  says  Judge  Rogers,  in  Hind  v.  Holdship,  2 
Watts,  104,  "  if  it  arise  from  any  act  of  the  plaintiff,  from  which  the  defend- 
^ant  or  a  stranger  derives  any  benefit,  however  small,  if  such  act  is  performed 
by  the  plaintiff  with  the  assent,  express  or  implied,  of  the  defendant ;  or  by 
leason  of  any  damages  or  any  suspension  or  forbearance  of  the  plaintiff's  right 
at  law  or  in  equity  ;  or  any  possibility  of  loss  occasioned  to  the  plaintiff  by  the 
promise  of  another,  although  no  actual  benefit  accrues  to  the  party  promising. 
It  is  not  essential  that  the  consideration  should  be  adequate  in  point  of  actual 
value.  The  law  does  not  weigh  the  quantum  of  consideration,  having  no 
means  of  deciding  on  that  matter ;  and  it  would  be  unwise  to  interfere  with 
the  facility  of  contracting,  and  the  free  exercise  of  the  judgment  and  will  of 
the  parties.  The  law  allows  them  to  be  the  sole  judges  of  the  benefits  to  be 
derived  from  their  bargains,  provided  there  be  no  incompetency  to  contract, 

189 


177  CONSIDERATION    OF    PROMISES.         [lECT.  IV. 

of  fraud,  and  might  afford  evidence  of  the  existence  of 
fraud ;  and  fraud,  as  I  have  ah-eady  stated  to  you,  is  a 

and  the  agreement  violates  no  rule  of  law.  There  is  no  case  where  mere  in- 
adequacy of  price,  independent  of  other  circumstances,  has  been  held  sufficient 
to  set  aside  a  contract  between  parties  standing  on  equal  ground,  and  dealing 
with  each  other  without  any  imposition  or  oppression."  And  "  the  inequality," 
says  Chancellor  Kent,  in  Osgood  v.  Franklin,  '  amounting  to  fraud,  must  be  so 
strong  and  manifest,  as  to  shock  the  conscience  and  confound  the  judgment  of 
any  man  of  common  sense:"  Troy  Academy  v.  Nelson,  24  Vt.  189;  Robinson 
V.  Threadgill,  13  Ired.  39 ;  Brown  v.  Budd,  2  Ind.  442 ;  Tompkins  v.  Philips, 

12  Ga.  52.  The  doctrine  that  inadequacy  of  consideration  will  not  vitiate  an 
agreement  does  not  apply  to  a  mere  exchange  of  sums  of  money,  whose  value 
is  exactly  fixed,  but  to  the  exchange  of  something  in  itself  of  indeterminate 
value,  for  money,  or  perhaps  for  some  other  thing  of  indeterminate  value. 
The  consideration  of  one  cent  will  not  support  a  promise  to  pay  six  hundred 
dollars :  Schnell  v.  Nell,  17  Ind.  29 ;  Shepard  v.  Rhodes,  7  R.  I.  470.  It  is 
enough  to  supjjort  an  executory  contract  that  upon  the  contingency  of  its  per- 
formance the  requisite  consideration  must  necessarily  arise:  Poughkeepsie Co. 
V.  Griffin,  21  Barb.  454.  The  execution  of  a  deed  which  conveys  nothing  is 
not  a  sufficient  consideration  to  support  a  promise  by  the  grantee  to  the 
grantor:  Murphy  v.  Jones,  7  Ind.  529.  It  is  not  necessary  that  the  considera- 
tion should  pass  from  the  person  claiming  the  benefit  of  the  promise :  Cailleux 
V.  Hall,  1  E.  D.  Sm.  5.  A  subscription  to  a  common  object  with  others,  tliough 
gratuitous,  creates  a  legal  obligation:  McDonald  v.  Gray,  11  Iowa,  508;  Nor- 
ton V.  Janvier,  5  Harring.  346 ;  Trustees  v.  Robinson,  21  N.  Y.  234.  An 
agreement  by  which  one  party  is  sul  ject  to  trouble,  loss  or  inconvenience  is 
not  a  nudum  'pactum:  Findly  v.  Ray,  5  Jones,  125;  Carr  v.  Card,  34  Mo.  513. 
A  promise  by  one  to  pay  part  of  another's  debt  in  discharge  of  the  whole  does 
not  discharge  it,  and  is  therefore  without  consideration  unless  that  other  be  a 
party  to  the  agreement:  Whelan  v.  Edwards,  29  Ga.  315.  A  promise  to  in- 
duce one  to  comply  with  an  e-xisting  valid  contract  with  a  stranger  is  without 
consideration :  Johnson  v.  Sellers,  33  Ala.  265.  Doing  that  for  which  a  re- 
ward is  otiered  with  knowledge  of  the  offer  is  a  consideration  for  the  promise 
to  reward:  Morrell  t;.  Quarles,  35  lb.  544;  Ryer  v.  Stockwell,  14  Cal.  134.  A 
subscription  on  the  faith  of  which  expenses  or  liabilities  have  been  incurred, 
is  binding :  Do^de  v.  Glasscock,  24  Tex.  200 ;  Wayne  Institute  v.  Smith,  36 
Barb.  576.  An  existing  liability  is  a  good  consideration  for  a  promise, 
whether  express  or  implied,  to  pay  money  on  request :  Baily  v.  Bussing,  29 
Conn.  1.  Payment  by  a  debtor  of  a  part  of  a  sum  already  due  and  payable,  is 
no  legal  consideration  for  an  agreement  to  extend  the  time  for  the.payment  of 
the  residue :  Hunt  v.  Bloomer,  5  Duer,  202  ;  Stryker  v.  Vanderbilt,  27  N.  J.  68 ; 
Gibson  v.  Irby,  17  Tex.  173;  M'Cann  v.  Lewis,  9  Cal.  246;  Liening  (.  Gould, 

13  lb.  598 ;  State  v.  Davenport,  12  Iowa,  335.  The  payment  of  interest  in  ad- 
vance is  sufficient  consideration  to  support  an  agreement  for  further  forbear- 
ance: Dickerson  v.  Commissioners  6  Ind.  128;  V/arner  v.  Campbell,  26  III* 
282.  Making  a  payment  on  a  note  before  it  is  due  is  sufficient  consideration 
to  support  a  promise  to  extend  the  time:  Newsam  v.  Finch,  25  Barb.  175.     A 

190 


LECT.'IV.]         CONSIDERATION   OF    PROMISES.  177 

ground  on  which  the  performance  of  any  contract  may 
be  resisted.  But  if  there  be  no  suggestion  that  the 
party  promising  has  been  defrauded  or  deceived,  the 
Court  will  not  hold  the  promise  invalid  upon  the 
ground  of  mere  inadequacy  ;  for  it  is  obvious,  that,  to 
do  so,  would  be  to  exercise  a  sort  of  tyranny  over  the 
transactions  of  parties  wdio  have  a  right  to  fix  their  OAvn 
value  upon  their  own  labour  and  exertions,  and  would 
be  prevented  from  doing  so  were  they  subject  to  a  legal 
scrutiny,  on  each  occasion,  on  the  question  whether  the 
bargain  had  been  such  as  a  prudent  man  would  have 
entered  into.  Suppose,  for  instance,  I  think  fit  to  give 
£1000  for  a  picture  not  worth  £50;  it  is  foolish  on  my 
part ;  but,  if  the  owner  do  not  take  me  in,  no  injury  is 
done.  I  may  have  my  reasons.  Possibly,  I  may  think 
that  I  am  a  better  judge  of  paintings  than  my  neigh- 
bours, and  that  I  have  detected  in  it  the  touch  of 
Raphael  or  Correggio.  It  would  be  hard  to  prevent 
me  from  buying  it,  and  hard  to  prevent  my  neighbour 
from  making  the  best  of  his  propert}^  j)i'ovided  he  did 
not  take  me  in  by  telling  me  a  false  story  about  it. 
Accordingly,  in  the  absence  of  fraud,  mere  inadequacy 
of  consideration  is  no  ""'ground  for  avoiding  a  p.^^_Q-, 
contract.  You  will  see  two  remarkable  in-  ^  -■ 
stances  of  this  in  the  cases  of  Bainbridge  v.  Firm- 
stone  (y)  and  Wilkinson  v.  Oliveira  {z),  in  the  former 
of  which  the  defendant  in  consideration  that  the  plain- 
tiff had  consented  to  allow  the  defendant  to  weigh  cer- 
tain boilers  of  the  plaintiff,  promised  to  deliver  up  the 

(y)  8  A.  &  E.  (35  E.  C.  L.  R.)  743. 
(z)  1  Bing.  N.  C.  (27  E.  C.  L.  R.)  490. 


promise  by  a  debtor  that  he  will  not  pay  a  debt  then  past  due  until  a  future 
day  named,  and  that  lie  will  then  pay  the  same  with  interest,  is  held  not  to  be 
a  good  consideration  for  the  promise  of  the  creditor  to  extend  the  time :  Kel- 
logg V,  Olmsted,  lb  N.  Y.  189.— s. 

191 


178  CONSIDERATION    OF    PROMISES.         [lEOT.  IV. 

boilers  in  tlie  same  condition  as  when  lie  received  that 
consent ;  and  the  Court  held  that  the  consideration  was 
sufficient  to  sustain  the  promise.  "We  need  not  in- 
quire," said  Lord  Denman,  C.  J.,  "  what  benefit  he  ex- 
pected to  derive.  The  plaintiff  might  have  given  or 
refused  leave"  {a).  In  the  latter  of  these  cases  the 
defendant  promised  to  give  the  plaintiff  £1000  for  the 
use  of  a  letter  which  contained  matters  explanatory  of 
a  controversy  in  which  the  defendant  was  engaged,  and 
the  consideration  was  held  not  to  be  inadequate  to  sup- 
port the  promise. 

There  is  an  old  case  upon  this  subject,  involving 
so  singular  a  state  of  facts  that  I  cannot  forbear  men- 
tioning it.  It  is  called  Thornborow  v.  Whiteacre,  and 
is  reported  2  Ld.  Raym.  1164. 

It  was  an  action  in  which  the  plaintiff  declared 
that  the  defendant,  in  consideration  of  2s.  Qd.  paid 
down,  and  £4  17^.  Qd.  to  be  paid  on  the  performance 
of  the  agreement,  promised  to  give  the  plaintiff  two 
r*1 7Q1  gi'^i^^^  of  rye  corn  on  Monday,  the  29th  of  *March, 
four  on  the  next  Monday,  eight  on  the  next, 
sixteen  on  the  next,  thirty-two  on  the  next,  sixty- 
four  on  the  next,  one  hundred  and  twenty-eight  on 
the  next,  and  so  on  for  a  year,  doubling  on  every 
successive  Monday  the  quantity  delivered  on  the  last 
Monday. 

The  defendant  demurred  to  the  declaration ;  and  upon 
calculation,  it  was  found  that,  supposing  the  contract  to 
have  been  performed,  the  whole  quantity  of  rye  to  be 
delivered  would  be  524,288,000  quarters;  so  that,  as 
Salkeld  the  reporter,  who  argued  the  demurrer,  re- 
marked, all  the  rye  grown  in  the  world  would  not  come 
to  so  much.  But  the  Court  said,  that  though  the  con- 
tract was  a  foolish  one,  it  would  hold  at  law,  and  that 

(a)  See  Smith  v.  Smith,  32  L.  J.  (C.  P.)  149. 

192 


LECT.  IV.]        CONSIDERATION   OF   PROMISES.  170 

the  defendant  ought  to  pay  something  for  his  folly.^ 
The  case  was  ultimately  compromised.  I  presume, 
however,  that  if,  instead  of  demurring,  the  defendant 
had  pleaded  that  he  had  been  induced  to  enter  into  the 
contract  by  fraud,  he  would  have  been  able  to  sustain 
his  plea ;  since  it  seems  obvious,  on  the  face  of  the 
thing,  that  the  plaintiif  was  a  good  arithmetician,  who, 
by  a  sort  of  catch,  took  in  a  man  unable  to  reckon  so 
well.  Probably,  the  plaintiff  had  taken  his  hint  from, 
the  old  story  regarding  the  invention  of  the  game  of* 
chess.  But,  by  demurring,  the  defendant  admitted  that 
there  was  no  fraud,  and,  consequently,  the  only  question 
was  on  the  validity  of  the  contract  in  the  absence  of 
fraud  ;  so  that  the  case  presents  a  strong  example  of  the 
reluctance  *of  the  Courts  to  enter  into  a  ques- 
tion  as  to  the  adequacy  of  consideration.  ^         -^ 

This  reluctance  is  also  very  strongly  exemplified  by 
some  cases  turning  on  contracts  in  restraint  of  trade. 
By  the  law  of  England,  a  contract  in  general  restraint 
of  trade  is  void ;  but  if  in  partial  restraint  of  trade 
only,  it  may  be  supported,  provided  the  restraint  be 
reasonable,  and  the  contract  founded  on  a  consideration. 
And  it  was  once  laid  down  that  the  consideration  must 
be  adequate,  and  that  the  Courts  would  enter  into  the 
question  of  adequacy.  However,  they  have  now  decided 
that  they  ought  not  to  do  so.  These  cases  are  particu- 
larly strong,  for  they  are  cases  in  which,  contrary  to  the 
general  rule  of  law,  a  consideration  is  required,  even 
though  the  contract  be  by  deed.  I  shall  have  occasion 
to  mention  them  again  in  a  subsequent  lecture.  At 
present,  I  will  merely  refer  to  the  decisions  (b). 

(6)  Hitchcock  v.  Coker,  6  A.  &  E.  (33  E.  C.  L.  R.)  438 ;  confirmed  by  Proctor 
V.  Sargent,  2  M.  &  Gr.  (40  E.  C.  L.  R.)  20 ;  and  Green  v.  Price,  18  M.  &  W. 

*  So  in  the  old  case  in  which  the  hor^e  was  sold  for  one  barley-corn  for  the 
first  nail  in  the  horse's  shoe,  two  for  the  second,  and  so  on,  doubling  on  each 

13  193 


180  CONSIDERATION   OF    PROMISES.  [lECT.  IV. 

The  consideration  must,  nevertheless,  be  of  some 
value  in  contemjDlation  of  the  law ;  for  instance,  if  a 
man  make  an  estate  at  will  in  favour  of  another,  this  is 
an  insufficient  consideration,  for  he  may  immediately 
determine  his  will  (c).  So,  too,  where  a  son  had  given 
to  his  father  a  promissory  note,  *and,  to  an  ac- 
L  -^  tion  brought  by  his  father's  executor  against 
him  upon  it,  he  j)leaded  that  he  bad  just  ground  to 
complain  of  the  distribution  which  the  father  had  made 
of  his  property,  as  the  father  had  admitted  ;  and  that  it 
was  thereupon  agreed  between  them  that  the  son  should 
cease  for  ever  to  make  any  such  complaint ;  and  that 
the  father  would  discharge  him  from  liability  on  the 
note,  and  the  cause  of  action  in  respect  thereof;  and 
that  such  agreement  should  be  accepted  in  satisfaction 
of  the  note :  the  Court  of  Exchequer  clearly  held,  that 
there  was  no  consideration  for  the  agreement  of  the 
father.  The  son  had  no  right  to  complain,  for  tJie 
father  might  make  what  distribution  of  his  property  he 
liked  ;  and  the  son's  abstaining  from  doing  what  he  had 
no  right  to  do  could  be  no  consideration  {d)} 

695;  16  M.  &  W.  346,  S.  C,  in  error;  Archer  %>.  Marsh,  6  A.  &  E.  (33  E.  C. 
L.  R.)  9n9;  and  Leighton  v.  Wales,  3  M.  &  W.54o. 

(c)  1  Roll.  Abr.  23,  pi.  29. 

(d)  White  r.  Bluett,  23  L.  J.  (Ex.)  36. 

nail,  the  jury  found,  under  the  direction  of  the  Court,  for  8/.,  the  value  of  the 
horse:  James  v.  Morgan,  1  Lev.  111. — r. 

'  In  Sykes  v.  Dixon,  9  A.&  E.  (36  E.  C.  L.  R.)  693,  Lord  Denman  said:  "To 
prove  that  Bradley  was  servant,  a  contract  was  put  in,  the  operation  of  which 
was  entirely  on  one  side.  It  bound  Bradley  to  serve  the  plaintiff,  and  no  otlier 
person,  for  a  specified  time,  and  not  to  leave  the  service  without  giving  twelve 
months'  notice.  .  .  .  We  think  that  the  agreement  put  in  was  no  contract  of 
service ;  for  it  was  altogether  on  one  side.  Bradley  was  to  serve  one  person 
only  ;  but  that  one  was  not  bound  to  employ  him.  It  was  contended,  for  the 
plaintiff,  that  a  promise  must  be  implied,  on  the  master's  part,  to  pay  Bradley 
for  his  labour  ;  but  that  would  be  the  same  in  any  service  to  which  Bradley 
might  engage  himself;  it  is  no  consideration  for  this  contract."  See  also 
Eosher  v.  Williams,  L.  E.  20  Eq.  210  ;  Maull  v.  Vaughn,  46  Ala.  134 ;  Pfeiffer 
f.  Adler,  37  N.  y  164 
194 


LECT.  IV.]         CO]S^SIDERATION    OF    PKOMISES.  181 

I  think  that  I  have  now  sufficiently  explained  what 
it  is  that  the  law  recognizes  as  a  consideration  sufficient 
to  support  a  promise  without  deed.  I  must  not,  how- 
ever, conclude  without  noticing  one  class  of  cases  which 
form  a  species  of  exception  to  the  rule  that  a  simple  con- 
tract requires  a  consideration  to  support  it.  I  allude  to 
the  case  of  a  negotiable  security,  as  a  bill  of  exchange, 
or  promissory  note.  These,  not  being  under  seal,  are 
simple  contracts ;  but  there  is  this  marked  distinction 
between  the  situation  in  which  they  stand  *and  ^ 
that  in  which  any  other  simple  contract  stands,  ^  ''■^ 
namely,  that  they  are  always  presumed  to  have  been 
given  for  a  good  and  sufficient  consideration,  until  the 
contrary  is  shown.  And  even  if  the  contrar}^  be  shown, 
still,  if  the  holder  for  the  time  being  have  given  value 
for  the  instrument,  his  right  to  sue  on  it  cannot  be  taken 
away  by  showing  that  the  person  to  whom  it  was  origin- 
ally given  could  not  have  sued,  unless,  indeed,  it  be 
further  shown  that  he  (the  holder)  had  notice  of  the 
circumstances,  or  that  he  took  the  security  when  over- 
due, which  is  a  sort  of  constructive  notice,  and  places 
him  in  the  same  situation  as  the  party  from  whom  he 
took  it.  But  so  long  as  nothing  of  that  sort  appears, 
every  note  and  acceptance  is  prima  facie  taken  to  have 
been  given  for  good  consideration,  and  every  indorse- 
ment to  have  been  made  on  good  consideration  (e). 

(e)  See  the  Act  codifying  the  law  relating  to  Bills  and  Notes,  45  &  46  Vict. 
c.  61.  (Bills  of  Exchange  Act,  1882)  ss.  27-30.  See  also  the  ca-ses  collected, 
Byles  on  Bills,  last  ed. ;  Bayley  on  Bills,  by  Dowdeswell ;  and  Smith's  Mer- 
cantile Law,  last  ed.,  by  Dowdeswell. 


195 


[*183]  LECTUEE  V. 

CONSIDERATION  OF  SIMPLE  CONTRACTS. EXECUTED  CON- 
SIDERATIONS.  WHERE      EXPRESS       REQUESTS      AND 

PROMISES  ARE  OF  AVAIL. MORAL  CONSIDERATIONS. 

ILLEGAL  CONTRACTS. RESTRAINTS  OF  TRADE. 

I  ENDEAVOURED  to  explain  in  the  last  lecture  what 
it  is  that  the  law  of  England  recognizes  as  a  considera- 
tion sufficient  to  support  a  promise  without  deed.  I 
stated  that  any  benefit  to  the  person  who  makes  the 
promise,  or  any  loss,  trouble,  or  disadvantage  under- 
gone by  or  charge  imposed  upon  the  person  to  whom  it 
is  made,  will  satisfy  the  rule  of  law  in  this  respect.  In 
order  to  render  this  as  clear  as  possible,  I  am  about, 
before  proceeding  to  the  next  branch  of  the  subject,  to 
illustrate  it  by  mentioning  a  few  decided  cases,  in  which 
certain  considerations  have  been  held  sufficient  to  sup- 
port the  promises  founded  on  them. 

It  has  been  frequentl}^  decided,  that,  if  one  man  have 
a  legal  or  equitable  right  of  suit  agaiust  another,  his 
forbearance  to  enforce  that  legal  or  equitable  right  of 
suit  is  a  sufficient  consideration  for  a  promise  either  by 
r*1  R41  ^^^^  person  liable  to  him  or  '^by  any  third  per- 
son, either  to  satisfy  the  claim  on  which  that 
light  of  suit  is  founded,  or  to  do  some  other  and  col- 
lateral act.  Thus,  where  (a)  the  plaintiff  in  an  action 
of  assumpsit  stated  in  his  declaration  that  he  was  the 
assignee  of  a  bond  for  £728  2s.  6d.,  in  which  the  de- 
fendant was  the  obligor,  and  that,  in  consideration  that 
the  plaintiff  would  receive  payment  on  certain  specified 
days,  and   forbear  proceeding  in   the  meanwhile,  the 

(a)  Morton  v.  Burn,  7  A.  &  E.  (34  E.  C.  L.  E.)  19. 

196 


LECT.  v.]  CONSIDERATION   OF    PROMISES.  184 

defendant  had  promised  to  pay  on  those  days ;  after  a 
verdict  for  the  plaintiff,  it  was  objected,  in  arrest  of 
judgment,  that  there  was  no  consideration  for  the 
promise  ;  for  that,  if  an  action  had  been  brouglit  in  the 
name  of  the  obligee  of  the  bond,  the  agreenient  of  the 
assignee  to  forbear  would  have  been  no  defence,  upon 
a  ground  which  I  have  already  sufficiently  ex- 
plained, namely,  that  an  obligation  by  deed  cannot  be 
discharged  by  an  agreement  without  deed.  The  Court, 
however,  decided  that  the  consideration  was  sufficient ; 
"  for,"  said  the  Lord  Chief  Justice,  "  although  the  agree- 
ment to  forbear  would  not  be  pleadable  to  an  action  in 
the  name  of  the  obligee,  yet,  unless  the  plaintiff  did 
forbear  according  to  his  agreement,  he  would  not  be  able 
to  sue  on  the  defendant's  promise."  Thus,  again, 
where  {b)  the  plaintiff,  who  had  been  appointed  by  the 
Court  of  Chancery  a  receiver  of  the  debts  and 
'•■'moneys  of  a  firm,  agreed  to  give  time  of  pay- 
ment  to  a  person  who  owed  money  to  the  firm,  ■-  ^ 
in  consideration  of  which  a  third  person  promised  to 
guarantee  the  debt ;  in  an  action  againt  the  third 
person,  it  was  objected  that  there  was  no  sufficient 
consideration  for  his  promise;  the  Court  of  Common 
Pleas,  however,  decided  that  there  was.  In  another  case 
the  plaintiff  had  obtained  judgment  against  Elizabeth 
Mackenzie  for  £57  debt,  and  65s.  costs ;  and,  in  con- 
sideration that  the  plaintiff  would  forbear  to  execute  a 
fieri  facias  on  her  goods,  the  defendant  undertook  to  pay 
him  £107  in  three  days.  It  was  objected,  that  there 
was  no  consideration,  or,  at  least,  no  sufficient  considera- 
tion :  but  Lord  Tenterden  said,  "  It  is  true  the  plaintiff 
might  not  perhaps  have  been  entitled  to  recover  to  the 

{h)  Willatts  V.  Kennedy,  8  Bing.  (21  E.  C.  L.  R.)  5;  Parker  v.  Leigh,  2 
Stark.  (3  E.  C.  L.  R.)  229-  Atkinson  r.  Bayntun,  1  Bing.  N.  C.  (27  E.G.  L.R.) 
444. 

197 


185  CONSIDERATION    OF    PROMISES.  [lECT.  V. 

full  extent  of  £107,  though,  it  is  to  be  observed,  he 
might  have  levied  the  cost  of  the  execution  in  addition 
to  the  sum  given  by  the  verdict.  But  he  had  a  right  at 
least  to  levy  £60 ;  and  if,  in  consideration  of  his  for- 
bearing that,  the  defendant  promised  to  pay  him  the 
larger  sum ; — if  the  inconvenience  of  an  execution 
against  these  goods  at  the  time  in  question  was  so  great, 
that  the  defendant  thought  proper  to  buy  it  off  at  such 
an  expense,  I  do  not  see  that  the  consideration  is  insuffi- 
cient for  the  promise  "  (cf 

(c)  Smith  V.  Algar,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  603. 


*  Forbearance  to  sue  or  proceed,  has  always  been  held  a  sufficient  considera- 
tion: Haniaker  v.  Eberly,  2  Binn.  506  ;  Johns  v.  Potter,  5  S.  &  R.  519  ;  Lons- 
dale V.  Brown,  4  Wash.  C.  C.  148;  Clark  v.  Russell,  3  Watts  213;  Downing  v. 
Funk,  5  Rawle,  69  ;  Silvis  v.  Ely,  3  W.  &  S.  420 ;  Kean  v.  M'Kinsey,  2  Pa.  St. 
30 ;  Dundas  v.  Sterling,  4  lb.  73.  But  if  the  creditor  has  not  the  legal  right 
to  sue,  at  any  time  during  which  he  promises  to  forbear  suit,  the  promise  to 
pay  in  consideration  of  such  forbearance  is  without  consideration,  and  conse- 
quently void :  Martin  v.  Black,  20  Ala.  309.  In  Caldwell  v.  Heitshu,  9  W. 
&  S.  51,  the  term  "  further  forbearance,"  as  the  consideration  expressed  in  a 
written  guarantee,  was  construed  to  mean  forbearance,  for  a  corv^.nient  or 
reasonable  time,  taking  into  view  in  its  computation  as  an  element  the  period 
which  had  heretofore  been  permitted  to  elapse,  without  enforcing  payment; 
and  what  is  a  reasonable  or  convenient  time,  the  Court  must  determine.  For- 
bearance to  sue  a  debt  due  and  payable,  upon  receiving  a  personal  promise  of 
payment  from  the  assignee  in  pais  of  the  debtor,  is  evidence  from  which  a 
jury  may  infer  an  agreement  to  forbear  which  is  a  good  consideration  for  the 
promise :  Boyd  v.  Freize,  5  Gray,  553.  In  order  to  constitute  a  valid  contract 
of  forbearance  of  suit,  it  is  necessary  that  it  should  be  definite  and  certain 
as  to  the  terms  of  forbearance  and  the  period  of  it :  Garnett  v.  Kirkman,  S3 
Miss.  389.  The  promise  of  A.  to  pay  the  debt  of  B.  in  consideration  of  for- 
bearance is  not  binding,  unless  accepted  by  the  promisee.  To  make  it  binding 
both  must  be  bound:  Shupe  v.  Galbraith,  32  Pa.  St.  10.  A  promise  in  con- 
sideration of  forbearance  to  pay  the  debt  of  an  infant,  who  ratifies  the  con- 
tract after  arriving  at  full  age,  is  valid  and  binding  on  the  promisor :  Kuns  v. 
Young,  34  lb.  60.  If  the  promisee  perform  the  thing  required,  though  not 
bound  by  the  agreement  to  do  it,  the  performance  is  a  consideration  and  the 
promisor  is  bound :  Crawford  r.  Avery,  35  Miss.  205.  A  promise  to  pay 
money  in  consideration  of  forbearance  to  sue  when  there  is  no  legal  cause  of 
action  is  void:  Palfrey  v.  Portland  R.  R.  Co.,  4  Allen,  55.  See  also  Steadman 
V.  Guthrie,  4  Mete.  (Ky.)  147;  McCelvy  v.  Noble,  13  Rich.  330;  Sharpe  v. 
Rogers,  12  Minn.  174:  Mechanics'  Bank  v.  Wixson,  42  N.  Y.  438.— s. 
198 


LECT.  v.]  CONSIDEEATION    OF    PEOMISES.  185 

And  where  a  man  who  has  a  judgment  debt  r^i  ggn 
*takes  from  his  debtor  a  promissory  note  for 
the  amount,  payable  at  a  certain  future  time,  it  must 
be  inferred  that  he  thereby  enters  into  an  agree- 
ment to  suspend  his  remedy  for  that  time,  and  if  so, 
that  is  a  good  consideration  for  the  giving  of  the 
note  (d). 

AUhough  a  man  has  not  a  clear  legal  or  equitable 
right,  yet  if  his  right  or  claim  is  doubtful,  and  not 
clearly  nugatory  or  illegal,  the  abandonment,  or,  for  the 

(d)  Belshaw  v.  Bush,  29  L.  J.  (C.  P)  24 ;  Baker  v.  Walker,  14  M.  &  W.  465. 
See  Tempson  v.  Knowles,  7  C.  B.  (62  E.  C.  L.  R.)  651 ;  Wilson  v.  Bevan,  7  C. 
B.  (62  E.  C.  L.  R.)  673. 


Mere  forbearance  to  sue  without  any  agreement  to  that  effect,  is  not  a  suffi- 
cient consideration  for  the  promise  of  another  to  pay  the  debt  of  the  person 
liable,  although  the  act  of  forbearance  was  induced  by  such  promise :  Manter 
I'.  Churchill,  127  Mass.  31.  Forbearance  to  contest  a  will  is  a  good  considera- 
tion, and  a  note  given  after  the  statutory  period  for  contesting  wills  is  good,  if 
in  pursuance  of  an  agreement  for  settlement  made  within  such  period :  Hin- 
dert  V.  Schneider,  4  111.  App.  203.  Where  a  tax  collector,  in  consideration  of 
the  promise  of  the  owner  of  land  advertised  to  be  sold  for  taxes,  delays  the 
sale  beyond  the  advertised  time,  a  sufficient  consideration  for  the  promise  ia 
given,  and  this  without  regard  to  the  belief  of  the  collector  in  the  validity 
and  regularity  of  the  assessment :  Gove  v.  Newton,  58  N.  H.  359.  A  promise 
to  pay  money  for  the  discontinuance  of  a  suit  is  upon  a  sufficient  consideration^ 
thougli  the  defendant  might  have  prevailed  in  the  suit :  Flannagan  v.  Kilcome, 
68  N.  H.  443.  An  agreement  to  forbear  bringing  suit  for  a  debt  due  for  an 
indefinite  time,  if  followed  by  actual  forbearance  for  a  reasonable  time,  is  ai 
good  consideration  for  a  promise  to  pay  the  debt  by  a  person  other  than  the 
debtor :  Howe  v.  Taggart,  133  Mass.  284.  The  maker  of  a  note,  being  sued 
thereon,  agreed,  in  consideration  of  forbearance  to  sue,  to  pay  compound 
interest  thereon  for  the  remainder  of  its  term :  JJeld,  that  there  was  sufficient 
♦consideration  for  the  agreement :  Jasper  County  v.  Tavis,  76  Mo.  13.  A 
promise  to  guarantee  a  debt  already  due,  made  in  consideration  of  the  forbear- 
ance of  the  creditor  to  attach  the  debtor's  goods,  is  void  when  there  was  no 
valid  ground  of  attachment:  Smith  v.  Easton,  54  Md.  138.  A  promise  by  a 
creditor  to  forbear  the  institution  of  proceedings  in  bankruptcy  against  his 
debtor  is  not  a  sufficient  consideration  to  support  a  promise  by  a  third  party  to 
pay  the  debt,  if,  in  fact,  the  creditor  could  not  have  sustained  such  proceedings, 
though  he  believed  that  he  could  have  sustained  tliem,  and  though  the  third 
party  believed  that  forbearance  to  proceed  would  be  advantageous  and  bene- 
ficial to  himself:  Ecker  v.  McAllister,  54  Md.  362. 

199 


186  CONSIDERATION    OF   PROMISES.         [lECT.  V. 

same  reason,  the  forbearance  of  an  action  brought  to 
enforce  it,  is  a  sufficient  consideration  for  a  promise  {e). 
Where  the  phiintiff's  goods  had  been  seized  by  the 
Excise,  and  he  had  afterwards  entered  into  an  agree- 
ment with  the  Commissioners  of  Excise,  that  all  pro- 
ceedings should  be  terminated,  the  goods  delivered  up 
to  him,  and  a  sum  of  money  paid  by  him  to  the  Com- 
missioners, Parke,  B.,  rests  his  judgment  on  the  ground 
that  this  agreement  of  compromise  honestly  made,  w^as 
for  a  consideration,  and  binding  (/).  Indeed  the  dis- 
puted claim  may  be  wholly  unfounded,  and  yet  the 
compromise  of,  or  forbearance  to  enforce  the  claim  may 
be  a  good  consideration,  if  the  claim  be  made  bona  fide 
at  the  time  of  the  agreemant  to  compromise  or  forbear  {g). 
r*1«71  *Thus,  in  Cook  v.  Wright  (h),  the  trustees 
under  a  local  Act  called  on  the  agent  of  the 
owner  of  certain  houses  to  pay  certain  expenses  charge- 
able under  the  act  on  the  owner.  The  agent  told  the 
trustees  that  he  was  not  owner  but  that  B.  was,  and 
that  such  owner  and  not  he  was  liable  ;  but  the  trustees 
notwithstanding,  really  believing  that  he  was  liable, 
threatened  to  take  proceedings  against  him.  There- 
upon the  agent,  although  he  knew  he  was  not  liable, 
gave  his  own  promissory  notes  to  the  trustees,  on  their 
agreeing  to  take  less  than  the  amount  demanded,  and 

(e)  Longridge  v.  Dorville,  5  B.  &  Ad.  (7  E.  C.  L.  R.)  117 ;  Stracy  v.  Bank  of 
England,  6  Ring.  (19  E.  C.  L.  R.)  754. 

(/)  Atlee  V.  Backhouse,  3  M.  &  W.  633. 

{g)  Callisher  v  Bischoffsheim,  L.  R.  5  Q.  B.  449  ;  39  L.  J.  (Q.  B.)  181.  See, 
however,  the  remarks  of  Brett,  L.  J.,  on  this  case  in  Ex  parte  Banner,  in  re 
Blythe,  17  Ch.  Div.  480,  490;  51  L.  J.  (Ch.)  300,  302.  His  Lordship  there 
questions  "  whether,  in  order  to  support  a  compromise  of  an  action,  it  is  not 
necessary  to  show,  not  only  that  the  plaintiff  believed  that  he  had  t  good 
cause  of  action,  but  that  the  circumstances  did  in  fact  raise  some  doubt 
whether  there  was  or  was  not  a  good  cause  of  action,  and,"  he  adds,  "  I  ven- 
ture to  doubt  whether,  if  there  was  clearly  and  obviously  no  cause  of  action,  the 
mere  belief  of  the  parties  that  there  was  would  support  the  compromise." 

{h)  1  B.  &  S.  (101  E.  C.  L.  R.)  559 ;  30  L.  J.  (Q.  B.)  321. 

200 


LECT.  v.]  CONSIDERATION   OF    PEOMISES.  187 

allowing  it  to  be  paid  by  instalments,  and  this  was 
decided  to  be  a  good  consideration.  A  fortiori,  where 
the  right  is  not  doubtful,  but  the  amount  of  the  claim 
only  is  disputed,  an  agreement  for  the  settlement  of  all 
disputes  upon  the  payment  of  a  definite  but  smaller 
sum  than  that  claimed,  is  held  to  be  founded  upon  suf- 
ficient consideration  (iy.  But  it  would  be  another 
^matter  if  a  person  made  a  claim  which  he  knew  r.^^  r>r>-| 
to  be  unfounded.  Thus  {k),  where  issue  had 
been  joined  in  a  previous  action  for  the  recovery  of  a 
sum  of  money  from  the  defendant,  who  had  thereupon 
promised  to  pay  the  money  and  costs,  in  consideration 

(i)  Edwards  v.  Baugli,  11  M.  &  \V.  641 ;  Wilkinson  v.  Byers,  1  A.  &  E.  (28 
E.  C.  L.  R.)  106 ;  Llewellyn  v.  Llewellyn,  3  D.  &  L.  318. 

(k)  Wade  v.  Simeon,  2  C.  B.  (52  E.  C.  L.  R.)  548,  and  see  Callisher  v. 
Bischoffsheim,  supra. 

^  "  A  compromise  of  a  doubtful  title,  when  procured  without  such  deceit  as 
would  vitiate  any  other  contract,  concludes  the  parties,  though  ignorant  of 
the  extent  of  their  rights."  Gibson,  C.  J.,  in  Hoge  v.  Hoge,  1  \Vatts,  216 ; 
Brown  v.  Sloan,  6  Watts,  421  ;  Meanor  v.  M'Kowan,  4  W.  &  S.  304 ;  Rineharl 
V.  Olwine,  5  lb.  163 ;  M'CuUoch  v.  Cowher,  lb.  417 ;  Chamberlain  v.  M'Clurg, 
8  lb.  37  ;  Logan  v.  Matthews,  6  Pa.  St.  417.  Even  when  there  was  a  mutual 
mistake  of  the  law,  the  parties  having  acted  in  good  faith,  a  compromise  has 
been  supported :  M'Coy  v.  Hutchinson,  8  W.  &  S.  66.  The  compromise  of  an 
action  of  slander,  in  which  the  words  laid  in  the  declaration  were  not  action- 
able, was  held  a  good  consideration:  O'Keson  v.  Barclay,  2  P.  &  W.  531.  That 
the  claim  was  evidently  without  color  would  be  a  circumstance  to  show  fraud 
or  imposition  upon  a  weak  understanding,  but  if  a  man  with  his  faculties 
about  him,  makes  a  promise  to  get  rid  of  an  annoying  claim,  which,  though 
worthless,  it  will  cost  him  time,  trouble,  and  money  to  contest,  it  would  be 
drawing  the  Court  into  too  nice  a  discussion  to  determine  what  degree  of 
doubt  there  must  be  about  it  to  give  validity  to  the  compromise.  A  com- 
promise of  conflicting  and  doubtful  claims  or  the  giving  up  a  suit  instituted 
to  try  a  question  respecting  which  the  law  is  doubtful,  is  a  sufficient  considera- 
tion to  support  an  agreement  to  pay  a  stipulated  sum :  Field  v.  Weir,  28  Miss. 
56  ;  Burnham  v.  Dunn,  35  N.  H.  556 ;  Mayo  v.  Gardner,  4  Jones,  359  ;  Jarvis 
V.  Sutton,  3  Ind.  289 ;  Kerr  v.  Lucas,  I  Allen,  279 ;  Allen  v.  Prater,  35  Ala. 
169  ;  Crans  v.  Hunter,  28  N.  Y.  389.  An  agreement  to  settle  a  family  controversy 
cannot  be  considered  a  nude  pact :  Watkins  v.  Watkius,  24  Ga.  402.  Where 
a  claim  is  legally  groundless  a  promise  upon  a  compromise  of  it  or  of  a  suit 
upon  it,  is  not  binding:  Schnell  v.  Nell,  17  Ind.  29.  See  also  Crans  v.  Hunter, 
28  N.  Y.  389  ;  Fleming  v.  Ramsey,  46  Pa.  St.  252;  Farmers'  Bank  v.  Blair,  44 
Barb.  641 ;  Scott  v.  Warner,  2  Laos.  49  ;  Snow  v.  Grace  29  Ark.  131.— s. 

201 


188  C0^^SIDEEAT10N   OF   PROMISES.  [lECT.  V. 

that  the  plaintiff  would  forbear  further  proceedings ; 
an  action  having  been  brought  upon  this  promise,  the 
defendant  pleaded  that  the  plaintiff  never  had  any 
cause  of  action  agiiinst  the  defendant  in  respect  of  the 
subject-matter  of  the  said  action.  "To  that,"  said 
Tindal,  C.  J.,  in  giving  judgment,  "  the  plaintiff  has 
demurred,  and,  doing  so,  admits  the  statement  contained 
in  it,  that  he  had  no  cause  of  action  in  the  original  suit, 
to  be  true.  Having  made  that  admission,  it  appears  to 
me  that  he  is  estopped  from  saying  that  there  was  any 
valid  consideration  for  the  defendant's  promise.  It  is 
almost  contra  bonos  mores,  and  certainly  against  all 
legal  principle,  that  when  a  man  knows  that  he  has  no 
cause  for  it,  he  should  still  persist  in  prosecuting  an 
action.  Then,  in  order  to  establish  a  binding  promise, 
the  plaintiff  must  show  a  consideration  for  it,  consisting 
of  something  which  is  either  beneficial  to  the  defendant 
or  detrimental  to  the  plaintiff.  It  cannot,  however,  be 
said  that  the  foregoing  of  such  an  action  can  be  re- 
garded by  a  Court  as  beneficial  to  the  defendant,  because 
r*1ftQ1  ^^®  ^thereby  saves  the  risk  of  defeat,  and  the 
extra  costs  which  he  would  necessarily  incur  in 
his  defence;  for  we  must  assume  that  the  result  of 
the  action  would  have  been  in  his  favour,  and 
the  law  would  enable  him  to  recover  costs,  which  it 
regards  as  a  compensation  for  all  the  costs  the  defendant 
sustains.  Neither  can  the  foregoing  of  the  action  be 
regarded  as  detrimental  to  the  plaintiff,  for  we  can  only 
view  it  as  saving  him  from  the  payment  of  those  costs. 
The  consideration,  therefore,  fails  upon  both  grounds." 

Again  it  has  been  decided,  that,  if  I  entrust  a  man 
to  do  some  act  for  me,  although  I  am  to  pay  him  noth- 
ing for  performing  it,  still  the  mere  trust  which  I  re- 
pose in  him  is  a  consideration  for  a  promise  on  his  part 
to  conduct  himself  faithfully  in  the  performance  of 
202 


LECT.  v.]  CONSIDERATION   OF    PROMISES.  189 

it  (/).  Nay,  so  far  do  tlie  cases  on  this  subject  go,  that 
it  is  settled  that  not  only  is  the  reposal  of  such  trust  a 
sufficient  consideration  for  an  express  promise  on  the 
part  of  the  2:)erson  in  whom  it  is  reposed  to  conduct 
himself  faithfully  in  the  performance  of  it;  but  the 
law,  even  in  the  absence  of  an  exjDress  promise,  implies 
one  that  he  will  not  be  guilty  of  gross  negligence.  This 
'was  the  point  decided  in  the  famous  case  of  Coggs  v. 
Bernard  (m). 

'•'In  this  case  Bernard  had  undertaken  safely  r*iQA-| 
and  securely  to  take  up  several  hogsheads  of 
brandy  from  one  cellar,  and  safely  and  securely  to  lay 
them  down  again  in  another ;  and  he  was  held  bound 
by  that  undertaking,  and  responsible  for  damage  sus- 
tained by  them  in  the  removal.  The  reason  is,  said 
Mr.  Justice  Gould,  the  particular  trust  reposed  in  the 
defendant,  to  which  he  has  concurred  by  his  assump- 
tion, and  in  executing  which  he  has  miscarried  by  his 
neglect.  If  goods  are  deposited  with  a  friend,  and  are 
stolen  from  him  no  action  will  lie.  But  there  will  be  a 
difference  in  that  case  upon  the  evidence  how  the  matter 
appears.  If  they  are  stolen  by  reason  of  a  gross  neglect 
in  the  bailee,  the  trust  will  not  save  him  from  an  action; 
otherwise,  if  there  be  no  gross  neglect.  But,  if  a  man 
takes  upon  him  expressly  to  do  such  an  act  safely  and 
securely,  if  the  thing  comes  to  any  damage  by  his  mis- 
carriage, an  action  will  lie  against  him. 

And  on  this  jjoint  of  the  law  it  is  that  the  celebrated 
distinction  occurs  between  remunerated  and  unremuner- 
ated  agents ;  from  the  former  of  whom  the  law  implies 
a  promise,  that  they  will  act  with  reasonable  diligence ; 

{I)  See  Whitehead  v.  Greetham,  2  Bing.  (9  E.  C.  L.  R.)  464;  Shillibeer  v. 
Glynn,  2  M.  &  W.  143 ;  Bainbridge  v.  Firmstone,  ante,  p.  *178. 

[m]  2  Ld.  Eaym.  909 ;  1  Smith,  L.  C.  199  (8th  ed.).  See  Gladwell  v.  Steg- 
gall,  5  Bing  N.  C.  (35  E.  C.  L.  E.)  733 ;  Blackmore  v.  Bristol  and  Exeter 
Railway,  27  L.  J.  (Q.  B.)  167 ;  8  E.  &  B.  (92  E.  C.  L.  R.)  1035. 

203 


190  CONSIDERATION   OF    PROMISES.  [lECT.   V. 

from  the  latter,  only  that  they  will  not  be  guilty  of 
gross  negligence.  Thus,  where  a  stage-coachman  re- 
ceived a  parcel  to  carry  gratis,  and  it  was  lost  upon  the 
r*-|Qi-|    road.   Lord  ^Tenterden   directed   the  jury   to 

consider  whether  there  was  great  negligence  on 
the  coachman's  part  {n).  And  where  the  declaration 
stated  that,  in  consideration  that  the  plaintiff,  at  the 
defendant's  request,  would  employ  him  to  lay  out 
£1400  on  the  purchase  of  an  annuity,  the  defendant 
promised  to  perform  his  duty  in  the  premises,  yet  did 
not  do  so,  but  laid  it  out  in  the  purchase  of  an  annuity 
on  the  personal  security  of  insolvent  persons,  the  Court 
arrested  the  judgment,  on  the  ground  that  the  defend- 
ant was  an  un remunerated  agent,  and  was  not  charged 
with  having  acted  negligently  or  dishonestly  {p).  There 
is  another  equally  remarkable  distinction,  namely,  that 
a  remunerated  agent  may  be  compelled  to  enter  upon 
the  performance  of  his  trust,  or  at  least  made  liable  in 
damages  if  he  neglect  to  do  so ;  whereas  an  unre- 
munerated  agent  cannot,  although,  as  we  have  seen,  he 
may  be  liable  for  misconduct  in  the  performance  of  it. 
This  proposition  is  well  illustrated  in  the  case  of  Elsee 
V.  Gatward  {p),  where  one  count  of  the  declaration, 
stating  that  the  plaintiff  retained  the  defendant,  a  car- 
penter, to  repair  a  house  before  a  given  day,  that  the 
defendant  accepted  the  retainer,  but  did  not  perform 
the  work  within  the  time,  whereby  the  walls  of 
r*i  09-1    ^'^^^  plaintiff's  house  were  damaged,  was  held 

to  be  insufficient  as  not  showing  any  considera- 
tion ;  but  another  count,  stating  that  the  plaintiff,  being 
possessed  of  some  old  materials,  retained  the  defendant 

(n)  Eeauchamp  v.  Powley,  1  M.  &  Rob.  38.  See,  as  to  the  meaning  of  gross 
negligence,  Beal  v.  S.  Devon  Rail.  Co.,  3  H  &  C.  336. 

(0)  Dartnall  v.  Howard,  4  B.  &  C.  (10  E.  C.  L.  E.)  345;  Doorman  v.  Jen- 
kins, 2  A.  «&  E.  (29  E.  C.  L.  E.)  256. 

(p)  5  T.  R.  143. 

204 


LECT.  V]  CONSIDERATION   OF    PROMISES.  192 

to  perform  the  carpenter's  work  on  certain  buildings  of 
the  plaintiff,  and  to  use  those  old  materials,  but  that  the 
defendant,  instead  of  using  them,  made  use  of  new  ones, 
thereby  increasing  the  expense,  was  held  good,  as  it 
appeared  that  the  defendant  had  entered  on  the  per- 
formance of  the  work. 

Again,  if  one  man  is  compelled  to  do  that  which 
another  man  ought  to  have  done  and  was  compellable  to 
do,  that  is  a  sufficient  consideration  to  support  a  prom- 
ise by  the  former  to  indemnify  him.  Such  is  the  com- 
mon case  of  a  surety  who  has  been  compelled  to  pay  a 
demand  made  against  the  principal,  and  who,  as  we 
know,  is  entitled  to  bring  an  action  to  recover  an  in- 
demnity. And  such  is  also  the  case  of  an  endorser  of  a 
bill,  who,  on  account  of  the  acceptor's  default  in  not 
paying  the  bill  when  due,  is  compelled  by  the  holder  to 
pay  him  the  amount ;  the  endorser  may  sue  the  acceptor 
to  recover  an  indemnity  {q).  In  like  manner,  if  one  of 
several  joint  contractors,  not  being  partners  (whose 
rights  inter  se  are  not  at  common  law  ever  decided), 
has  been  compelled  to  pay,  or  in  pursuance  of  his  legal 
obligation  has  paid,  the  whole  of  their  common  liability, 

he  is  entitled  to  recover  from  each  *of  them  his    ^.^^^-, 

r  1931 
proportional  share  (r).     An  instructive  exam-    ^        -• 

pie  of  the  same  rule  is  afforded  by  the  case  of  Sutton  v. 

Tatham  (s).      There,  the  broker  for  a  seller  having 

entered  into  a  contract  for  the  sale  of  stock,  which  was 

(q)  Pownall  v.  Ferrand,  6  B.  &  C.  (13  E.  C.  L.  E.)  439.  See  also  45  &  46 
Vict.  c.  61  (Bills  of  Exchange  Act,  1882),  s.  57. 

(r)  Holmes  v.  Williamson,  6  M.  &  S.  158 ;  Prior  v.  Hembrow,  8  M.  A  W. 
873 ;  Pitt  V.  Purssord,  8  M.  &  W.  538 ;  Batard  v.  Hawes,  22  L.  J.  (Q.  B.)  443  : 
2E.&B.  (75E.  C.  L.  R.)  287. 

(s)  10  A.  &  E.  (37  E.  C.  L.  R.)  27 ;  Pawle  v.  Gunn,  4  Bing.  N.  C.  (33  E  C 
L.  R.)  445 ;  Bayliffe  v-  Butterworth,  1  Ex.  425;  Bayley  v.  Wilkins,  7  C.  B.  (6? 
E.  C.  L.  R.)  886 ;  Westrop  v.  Solomon,  8  C.  B.  (65  E.  C.  L.  R.)  345;  Taylor  -. 
Stray,  26  L.  J.  (C.  P.)  185,  287  (Ex.  Ch.) ;  2  C.  B.  (N.  S.)  (89  E.  C.  L.  R.^ 
175, 197. 

205 


193  EXECUTORY   CONSIDEEATIOXS.  [lECT.  V. 

not  fulfilled  by  his  principal,  and  similar  stock  having 
been  thereupon  purchased  at  a  higher  price  by  the 
broker  of  the  purchaser,  the  seller's  broker,  in  obedi- 
ence to  a  rule  of  the  Stock  Exchange,  paid  the  differ- 
ence, and  also  the  commission  of  the  purchaser's  broker; 
and  it  was  held  that  the  seller's  broker  might  recover 
from  his  principal  the  amount  of  such  payments,  by 
showing  that  it  was  compulsory  upon  him  to  make 
them.  These  examples  seem  sufficient  to  explain  the 
nature  of  the  species  of  consideration  now  before  us  (t) . 
I  might  cite  a  multitude  of  other  cases  in  which  ques- 
tions have  arisen  as  to  the  sufficiency  of  the  considera- 
tion ;  but  I  think  that  the  instances  I  have  already 
given  are  sufficient  for  the  purpose  I  had  in  view,  which 
was,  to  illustrate  the  general  nature  of  the  questions 
which  arise  on  the  sufficiency  of  a  consideration  to  sup- 
port a  promise. 

*  There  is,  however,  one  thing  more  to  be  ob- 
■-  -'  served,  and  that  is  the  distinction  between  ex- 
ecuted and  executory  considerations.  Now,  with  regard 
to  the  meaning  of  these  words,  which  you  will  continu- 
ally hear  used  in  legal  arguments,  it  is  this : — an  exe- 
cuted consideration  is  one  which  has  already  taken  place, 
an  executory  consideration  one  which  is  to  take  place — 
one  is  past,  the  other  future.  Thus,  if  A.  delivered 
goods  to  B.  yesterday,  and  B.  makes  a  promise  to-day  in 
consideration  of  that  delivery,  this  promise  is  said  to  be 
founded  upon  an  executed  consideration,  because  the 
delivery  of  the  goods  is  past  and  over.  But,  if  it  be 
agreed  that  A.  shall  deliver  goods  to  B.  to-morrow,  and 
that  B.  shall,  in  consideration,  do  something  for  A.,  here 
is  an  executory  consideration,  because  the  delivery  of 
the  goods  has  not  yet  taken  place.     And  so,  whenever, 

(0  Toussaint  i-.  Martinnant,  2  T.  R.  100 ;  Fisher  v.  Fallowes,  5  Esp.  171 ; 
Jeffreys  v.  Gurr,  2  B.  &  Ad.  (22  E.  C.  L.  E.)  833. 

206 


LECT.  v.]  EXECUTORY   CONSIDERATIONS.  194 

at  the  time  of  making  a  promise,  the  consideration  on 
which  it  is  founded  is  past,  the  consideration  is  said  to 
be  executed ;  whenever  the  consideration  is  future,  it  is 
said  to  h'd  executory} 

Now,  between  executed  and  executory,  or,  in  other 
words,  between  past  and  future  considerations,  the  law 
makes  this  distinction,  namely,  that  an  executed  con- 
sideration must  be  founded  on  a  previous  request ;  aij 


^  There  are  also  said  to  be  two  other  kinds  of  consideration,  viz.,  concurring 
and  continuing.  The  former  arises  in  the  case  of  mutual  promises,  as  wher'' 
A.  and  B.  being  competitors  for  the  bounty  for  the  best  manufactured  clotli^ 
agreed  that  the  successful  competitor  should  divide  the  bounty  with  the  othei, 
the  promises  were  mutual,  and  in  consideration  of  each  other  :  Briggsi'.  Tillo- 
ton,  8  Johns.  306.  So  when  several  promise  to  contribute  to  a  common  oly 
ject :  Stewart  v.  Trustees  of  Hamilton  College,  2  Den.  403 ;  Society  of  Tro; 
V.  Perry,  6  N.  H.  164 ;  where  one  promises  to  become  a  partner,  and  tlie  othe^ 
promises  to  receive  him  as  such :  M'Neill  v.  Reid,  9  Bing.  (23  E.  C.  L.  R.)  68 
and  the  like;  Wood  v.  Rice,  481;  Wightman  v.  Coates,  15  Mass.  1  ;  Willarc 
V.  Stone,  7  Cow.  22.  In  cases  of  concurrent  considerations,  if  the  promise  of 
either  party  should  fail  to  bind  him  (as  from  illegality  of  subject-matter,  oi 
any  such  cause),  the  other  promise  will  be  deprived  of  its  support,  and  the 
contract  could  not  be  enforced.  It  is  also  necessary  that  the  promises  should 
be  mutual  and  simultaneous:  Thornton  z'.  Jenyns,  1  Scott,  74;  and  an  aver- 
ment that,  in  consideration  of  the  plaintiff's  promise,  the  defendant "  a0er- 
wards,  to  wit,  on  the  same  day,  promised,"  lias  been  held  bad,  the  promise  hav- 
ing no  consideration ;  that  is,  no  consideration  but  another  promise,  and  that 
promise  was  not  a  mutual  and  simultaneous  one :  Livingston  v.  Rogers,  1  Cai. 
583;  Fricke  v.  V^ood,  12  Johns.  190;  Keep  v.  Goodrich,  lb.  397. 

It  has  been  sometimes  said  that  a  continuing  consideration  is  sufficient  to  sup- 
port a  promise,  as  where  one  should  promise  in  consideration  of  what  the 
other  party  had  done  and  might  thereafter  do.  But,  in  reality,  it  is  the  exe- 
cutory part  of  the  consideration  which  is  alone  valuable,  and  is  sufficient  to 
support  the  whole  promise ;  and  such,  upon  examination,  will,  it  is  believed, 
be  found  to  be  the  true  ground  of  decision  of  the  cases :  Pearl  v.  Unge,  Cro. 
Eliz.  94 ;  Brett  v.  J.  S.,  Cro.  Eliz.  735 ;  Colton  v.  Westcott,  1  Rolle,  381 ; 
Loomis  V.  Newhall,  15  Pick.  159  ;  Andrews  v.  Ives,  3  Conn.  368. — r. 

Mutual  promises  constitute  a  sufficient  consideration  for  the  support  of  a 
contract:  Forney  v.  Shipp,  4  Jones,  527;  Nott  v.  Johnson,  7  Ohio  St.  270; 
Leach  v.  Keech,  7  Clarke,  232 ;  Aid  rich  v.  Lyman,  6  R.  I.  98  ;  Funk  v.  Hough, 
29  111.  145  ;  Briggs  v.  Sizer,  30  N.  Y.  647  ;  Downey  v.  Hinchman,  25  Ind.  453; 
Boies  V.  Vincent,  24  Iowa,  387 ;  Messesquor  v.  Sabin,  48  Vt.  239.  And  see  as 
to  subscriptions:  Underwood  v.  Waldson,  12  Mich.  73;  Van  Rensselear  v. 
Aiken,  44  Barb.  547  ;  Pitt  v.  Gentle,  49  Mo.  74 ;  Cooper  v.  M'Crimmin,  33 
Tex.  383 ;  Lathrop  v.  Knapp,  27  Wis.  214.— s. 

207 


194  EXECUTED    CONSIDERATIONS.  [lECT.  \\ 

executory  one  need  not,  or,  to  speak  more  correctly,  its 
very  terms  imply  a  request.  For,  if  A.  promise  to  re- 
munerate B.  in  consideration  that  B.  will  perform  some- 
thing specified,  that  amounts  to  a  request  to  B.  to  per- 
form  the  act  for  which  he  is  *to  be  remuner- 
L  -^  ated  {u).  For  instance,  in  the  case  of  Hunt  v. 
Bate  {x),  Bate's  servant  was  arrested  and  sent  to  prison, 
and  Hunt  became  bail  for  him,  and  procured  his  libera- 
tion, after  which  the  master  promised  Hunt  to  save  him 
harmless.  Hunt  was  obliged  to  pay  the  servant's  debt, 
and  brought  an  action  against  Bate  upon  his  promise  to 
indemnify  him ;  but  the  Court  held  that  it  would  not  lie. 
"  For,"  said  the  Judges,  "  the  master  did  never  make 
request  to  the  plaintiff  to  do  so  much,  but  he  did  it  of 
his  own  head."  But  the  report  goes  on  to  say,  "  in 
another  action  brought  on  a  promise  of  twenty  pounds 
made  to  the  plaintiff  by  the  defendant,  in  consideration 
that  the  plaintiff,"  at  the  special  instance  of  the  defend- 
ant, had  taken  to  wife  the  cousin  of  the  defendant,  that 
was  a  "  good  cause  of  action,  though  the  marriage  was 
executed  and  pa^t  before  the  undertaking  and  promise, 
because  the  marriage  ensued  at  the  request  of  the  de- 
fendant."^ 

(u)  1  Smith,  L.  C.  155,  note,  8th  ed. 

{x)  Dyer,  272 ;  Pourtales  Gorgier  v.  Morris,  29  L.  J.  (C.  P.)  208. 


^  A  very  good  ilhistration  of  this  principle  may  be  found  in  the  case  of 
Dearborn  v.  Bowman,  3  Mete.  155,  where  the  plaintiff  had  in  a  political 
campaign  rendered  services  in  the  circulation  of  pamphlets  to  aid  the  elec- 
tion of  the  defendant,  who  had  subsequently  promised  to  pay  him  therefor,  and 
the  Court,  in  holding  the  promise  to  be  destitute  of  consideration,  said,  "  Such 
services  impose  no  obligation,  legal  or  moral,  on  the  defendant,  and  it  would 
be  somewhat  dangerous  to  hold  that  they  created  any  honorary  obligation  on 
him  to  pay  for  them.  Nor  would  it  be  aided  in  a  legal  view  by  a  previous 
custom,  if  proved,  for  candidates  to  contribute  to  the  payment  of  similar  ex- 
penses, whether  successful  or  otherwise  in  the  election.  Nor  were  these  ser- 
vices performed  at  the  request  of  the  defendant.  On  the  contrary,  it  ap- 
peared by  the  evidence  that  they   were  performed  by  the  chairman  of  the 

208 


LECT.  v.]  EXECUTED    CONSIDERATIONS.  195 

These  two  eases  clearly  illustrate  the  distinction  be- 
tween an  executed  consideration  moved  by  a  previous  re- 
quest, which  will  support  a  promise,  and  an  executed 
consideration  not  moved  by  a  previous  request  which 
will  not  support  a  promise.^     You  will  find  the  same 

county  committee,  who  alone  was  reponsible  for  the  payment,  and  between 
whom  and  the  defendant  there  was  no  privity,  nor  even  any  communication, 
until  long  after  the  services  had  been  performed.  The  rule  of  law  seems  to 
be  now  well  settled,  though  it  may  have  been  formerly  left  in  doubt,  that  the 
past  performance  of  service  constitutes  no  consideration  even  for  an  express 
promise,  unless  they  were  performed  at  the  express  or  implied  request  of  the 
defendant,  or  unless  they  were  done  in  performance  of  some  duty  or  obliga- 
tion resting  on  the  defendant :  Mills  v.  Wyraan,  3  Pick.  207  ;  Loomis  v.  New- 
hall,  15  lb.  159 ;  Dodge  v.  Adams,  19  lb.  429.  As  the  services  performed  by 
the  plaintiff  were  not  dene  at  the  request  of  the  defendant,  as  they  were  not 
done  in  the  fuKilnient  of  any  duty  or  obligation  resting  on  him,  there  was  no 
consideration  to  convert  the  express  promise  of  the  defendant  into  a  legal 
obligation."  To  the  same  point  are  Snevily  v.  Kead,  9  Watts,  396 ;  Geer  v. 
Archer,  2  Earb.  420;  Hudson  v.  OvertuffJ  2  111.  170;  Kinnerly  v.  Martin,  8 
Mo.  G9S  ;  Beaumont  v.  Reeve,  8  Q.  B.  (55  E.  C.  L.  R.)  483.— r. 

'  This  statement  should  be  somewhat  qualiKed.  It  has  already  been  pointed 
out  that  a  consideration  is  some  detriment  suffered  by  the  promisee  in  reliance 
upon  the  promise  of  the  promisor.  Now  if  the  consideration  be  executed 
(that  is,  past)  at  the  time  the  promise  is  made,  it  is  obvious  that  the  promisee 
did  not  afford  this  consideration  upon  the  faith  of  the  promise,  for  he  could 
not  know  that  such  a  promise  would  ever  be  made,  and  it  is  equally  obvious 
that  the  promisor  received  nothing  in  return  for  his  promise,  either  when  he 
made  it  or  at  any  other  time — that  which  he  received  from  tlie  promisee  he 
had  already  obtained,  and  in  regard  to  it  his  position  would  never  be  altered 
if  he  never  made  any  promise  at  all. 

Is  the  case  altered  if  the  consideration  moved  at  the  request  of  the  promisor? 
If  I  request  some  one  to  perform  some  service  for  me,  in  no  way  implying 
that  I  expect  to  compensate  liim  for  it,  and  he  does  it,  and  I  subsequently 
thank  him  for  the  service  rendered  and  promise  that  because  of  it  I  will  do 
something  for  him,  will  this  promise  bind  me?  If  the  language  quoted  from 
Lampleigh  v.  Braithwaite  be  a  correct  statement  of  the  law,  it  will,  and  I  shall 
be  held  to  the  performance  of  a  promise  in  return  for  which  I  received 
nothing,  and  wliich  was  entirely  voluntary  on  my  part.  But  upon  this  point 
Lampleigh  v.  Braithwaite  and  similar  cases  must  be  regarded  as  overruled : 
Livngdell,  Cases  on  Contracts,  ii,  1035  et  seq.  An  obligation  sometimes  arises 
from  a  past  transaction,  but  this  is  where  the  obligation  is  imposed  by  the 
law,  and  although  it  is  known  as  an  implied  contract,  the  agreement  of  the 
parties  has  nothing  to  do  with  its  binding  force :  infra,  pp.  *197  ct  seq.  Accord- 
ingly it  is  held  that  when  the  law  implies  a  promise  from  such  a  transaction 
— such  an  executed  consideration,  as  it  is  called — no  different  promise,  no 
matter  how  clearly  expressed,  can  be  enforced :  infra,  p,  *206. 

14  209 


195  EXECUTED    CONSIDERATIONS.  [lECT.  V. 

PlQn  <^i'*tinction  clearly  explained  in  *Lampleigli  v. 
Braithwaite  {y),  where  the  Court  said,  "a  mere 
voluntary  courtesy  will  not  have  a  consideration  to 
uphold  an  assumpsit.  But  if  that  courtesy  were  moved 
by  a  suit  or  request  of  the  party  who  gives  the  assump- 
sit, it  will  bind  ;  for  the  promise,  though  it  follows,  yet 
it  is  not  naked,  but  couples  itself  with  the  suit  before, 
and  the  merits  of  the  party  procured  by  that  suit, 
which  is  the  difference."  In  a  modern  case  this  prin- 
ciple was  applied  where  the  question  was,  as  to  whether 
there  had  been  any  consideration  given  for  a  Promissory 
Note.  A.,  the  plaintiff,  havin«^  performed  gratuitously 
services  for  B.,  received  from  him  a  promissory  note, 
with  an  understanding  that  he  should  not  only  accept  it 
as  a  gift  for  wliat  was  past,  but  that  it  should  be  a  re- 
muneration for  future  services  to  be  rendered  as  long  as 
B.  should  require  them.  A.  continued  to  perform  the 
services  until  B.'s  death,  when  he  sued  B.'s  executor's 
upon  the  note.  It  was  held,  that  in  order  to  make  the 
future  services  a  good  consideration  for  giving  the  note, 
it  was  incumbent  on  the  plaintiff  to  show  that  there 
was  some  contract  binding  him  to  perform  future  ser- 
vices which  might  have  been  enforced  by  the  giver  of 
the  note,  and  that  a  mere  understanding  was  not  asufli- 

(y)  Hob.  105.  See  judgment  in  Eastwood  v.  Kenyon,  11  A.  &  E.  (39  E.  C. 
L.  E.)  438. 

The  modern  rule  appears  to  be  that  where  the  obligation  is  created  by  the 
law  it  makes  no  difference  whether  the  party  bound  requested  the  performance 
of  the  so-called  consideration  or  not.  In  other  cases  where  the  party  is 
bound  because  of  his  previous  request,  it  would  seem  to  be  because  the  request 
was  in  such  terms  as  to  imply  compensation  for  the  services  rendered,  and  here 
the  action  rests  upon  the  promise  implied  in  the  request  at  the  time  of  the 
services  rendered,  and  is  independent  of  any  subsequent  express  promise  on 
his  part. 

See  Turner  v.  Partridge,  3  P.  &  W.  172  ;  Kenan  v.  Holloway,  16  Ala.  53; 
Ayers  v.  Chicago,  &c.,  R.  K.,  52  Iowa,  478 ;  Langdell,  Summary  of  the  Law  of 
Contracts,  U  90-98;  Wharton  on  Contracts,  §  514. 

210 


LECT.  v.]  EXECUTED    CONSIDERATIONS.  196 

cient  consideration,  there  being  nothing  to  show  that  the 
plaintiff  might  not,  the '''moment  the  note  was  r:-:-jn7-| 
given,  have  refused  to  give  his  services  (2;).^ 

But  here  arises  another  distinction,  and  it  is  the  last 
to  which  I  shall  refer  upon  this  subject ;  but  this  is  a 
distinction  to  which  it  is  absolutely  necessary  to  refer, 
in  order  that  you  may  not  be  misled  by  what  I  have 
already  stated.  There  being  the  rule  I  have  just  stated 
regarding  executed  considerations,  namely,  that  an  exe- 
cuted consideration  must  have  arisen  from  a  previous 
request  by  the  person  promising,  in  order  that  it  may 
be  sufficient  to  support  the  promise,  there  are  certain 
classes  of  cases  in  which  this  previous  request  is  implied, 
and  need  not  be  expressly  proved  by  the  person  to 
whom  the  promise  is  given.  Now  the  cases  in  which  a 
previous  request  is  implied  are  as  follows. 

First,  the  case  which  I  have  already  stated,  in  which 
one  man  is  compelled  to  do  that  which  another  ought  to 
have  done,  and  was  compellable  to  do.  In  this  case  the 
consideration  is  an  executed  one,  for  the  thing  must  have 
been  done  before  any  promise  can  be  made  to  reimburse 
the  person  who  has  done  it ;  but  though  the  considera- 
tion is  executed  the  law  implies  the  request.  And  there- 
fore in  this  case  an  action  may  be  brought  for  in- 
demnity without  proving  any  express  request  on  the 
part  of  the  *defendant  (a).  In  addition  to  the  rHMOQ-i 
examples  already  given,  the  case  of  Exall  v. 
Partridge  {b)  is  well  calculated  to  set  this  matter  in  a 

(2)  Hnlse  V.  Hulse,  17  C.  B.  (84  E.  C.  L.  R.)  711 ;  25  L.  J.  (C.  P.)  177. 
(a)  See  judgment  of  Queen's   Bench  in  Batard  r.  Hawes,  22  L.  J.  (Q.  B.) 
443  ;  2  E.  &  B.  (To  E.  C  L.  R.)  287. 

(6)  8  T.  R.  308.    See  also  Johnson  r.  Royal  Mail  Steam  Packet  Co.,  L.  R. 

'  The  student  who  seeks  for  a  more  extended  analysis  of  this  subject  than 
can  be  afforded  in  these  elementary  lectures,  may  most  profitably  refer  to  the 
note  to  Lampleigh  v.  Brathwaite,  1  Smith's  L.  C.  268,  8th  Am.  Ed.,  and  that 
to  Vadakin  v.  Soper,  1  Ara.  L.  C.  120. — R. 

211 


198  EXECUTED   CONSIDEEATIONS.  [lECT.  Y. 

clear  light.  There  the  defendant  was  tenant  of  certain 
premises,  and  under  covenant  to  pay  rent  to  the  land- 
lord for  tliem.  Having  neglected  to  pay  the  rent,  the 
goods  of  a  stranger  to  the  contract  between  the  land- 
lord and  tenant,  which  were  upon  tlie  premises  of  the 
latter,  were  distrained  by  the  landlord  for  the  rent  in 
arrear,  and  it  was  held  that  the  stranger  might  sue  the 
tenant  for  the  money  which  he  had  paid  in  order  to 
redeem  his  goods ;  although  it  is  obvious,  from  the  state 
of  the  facts,  that  no  request  that  he  should  do  so  had  in 
fact  been  made  by  the  tenant.  In  Grissell  v.  Kobinson  (c) , 
the  plaintiff  had  contracted  to  grant  the  defendant 
a  lease ;  the  lease  was  prepared  by  their  solicitor  and 
PIOQI  ^^^^"t®^*  I^  ^^  ^^^®  general  *practice  for  the 
lessor's  solicitor  to  prepare  the  lease,  and  for 
the  lessee  to  pay  the  solicitor  ;  the  lessee  having  refused 
so  to  do,  the  lessors  paid  him,  as  they  might  have  been 
compelled  to  do;  and  the  Court  decided  that  an  action 
•was  maintainable  by  them  for  money  paid  at  the  lessee's 
request. 

I  must  further  observe  upon  this  class  of  cases,  and 
also  upon  the  next,  that,  not  only  is  the  request  implied, 
but  the  promise  also ;  for,  if,  to  put  an  example,  A.  is 
indebted  to  B.  in  a  certain  sum  of  money,  and  C.  is  his 
surety ;  if  C  be  compelled  to  pay,  not  only  is  a  request 
by  A.  to  do  so  implied  by  law,  but  a  promise  by  him 
to  indemnify  C.  is  also  implied.     And,  in  an  action 

3  C.  p.  38 ;  37  L.  J.  (C.  P.)  33.  In  Exall  v.  Partridge,  the  goods  distrained 
on  were  on  the  premises  at  tlie  request  of  the  tenant.  When  a  stranger  leaves 
his  goods  on  the  premises  without  any  request,  express  or  implied,  of  the  ten- 
ant, and  the  stranger's  goods  are  distrained,  he  cannot  recover  what  he  pays 
to  release  them  from  the  tenant,  as  for  money  paid :  England  v.  Marsden,  L. 

B.  1  C.  P.  529 ;  35  L.  J.  (C.  P.)  259. 

(c)  3  Bing.  N.  C.  (32  E.  C.L.  R)  10;  V^^ebb  v.  Khodes,  3  Bing.  N.  C.  (32  E. 

C.  L.  R.)  732  ;  Moon  v.  Guardians  of  Witney  Union,  3  Bing.  N.  C.  (32  E.  C. 
T..  R.)  814 ;  Wilkinson  v.  Grant,  25  L.  J.  (G.  P.)  233;  18  C.  B.  (86  E.  C.  L.  R.) 
519 ;  Smith  v.  Clegg,  27  L.  J.  (Ex.)  300. 

212 


LECT.  v.]  EXECUTED   CONSIDERATIONS.  199 

brought  by  C.  to  enforce  the  indemnity,  he  need  prove 
no  express  promise,  no  express  request,  but  simply  that 
A.  was  indebted  to  B.,  and  that  he,  C,  as  A.'s  surety, 
was  compelled  to  pay  that  debt  (d).  For  an  example 
of  this,  you  may  take  the  common  case  of  an  accom- 
modation acceptor  or  endorser,  who,  as  soon  as  he  has 
been  obliged  to  pay  the  money,  may  maintain  an  action 
against  the  person  for  whose  accommodation  he  accepted 
or  endorsed  (e)} 

Secondly,  where  the  person  who  is  sought  to  be 
charged  adopts  and  takes  advantage  of  the  benefit 
*of  the  consideration.  Suppose,  for  instance,  A.  i-^.^^^-, 
purchases  goods  for  B.  without  his  sanction,  B.  ^  ^  J 
may,  if  he  think  fit,  repudiate  the  whole  transaction ; 
but  if,  instead  of  doing  so,  he  receive  the  goods  and 
take  possession  of  them,  the  law  will  imply  a  request 
from  him  to  A.  to  purchase  them,  and  will  also  imply  a 
promise  by  him  to  repay  A.,  and  he  will  be  liable  in  an 

(c/)  Pawle  V.  Gunn,  4  Bing.  N.  C.  (63  E.  C.  L.  E.)  445;  Jones  v.  Orchard, 
24  L.  J.  (C.  P.)  229 ;  16  C.  B.  (81  E.  C.  L.  K.)  614. 

{e)  Driver  v.  Burton,  21  L.  J.  (Q.  B.)  157 ;  17  Q.  B.  (79  E.  C.  L.  E.) 

989. 


'  This  principle  is  well  illustrated  by  the  case  of  Draughan  v.  Bunting,  9 
Ired.  13,  where  the  plaintiff,  who  had  endorsed  and  been  compelled  to  pay  a 
promissory  note,  relied  in  an  action  against  a  prior  endorser,  on  a  parol  promise 
of  indemnity  given  to  liim  by  the  maker  at  the  time  of  the  endorsement.  The 
court  held  it  clear  that  the  action  could  not  be  sustained  on  the  parol  promise, 
because  being  one  "  to  answer  for  tlie  debt  or  the  default  of  another,"  it  came 
within  the  Statute  of  Frauds,  and  should  therefore  be  in  writing,  but  that  the 
law  implied  a  promise  to  indemnify  from  the  relation  of  suretyship,  upon  which 
the  plaintiff  might  have  recovered,  but  for  the  following  circumstance :  the 
plaintiff,  in  order  to  prove  this  parol  promise,  had  called  the  maker  of  the  note 
as  a  witness,  and  had  been  obliged  to  execute  a  release  to  him,  in  order  to  re- 
stoi'e  his  competency,  and  it  was  urged  that  this  release  to  the  principal  dis- 
charged the  surety,  which  wa.s  undoubtedly  correct,  as  the  Court  held:  but  it 
being  also  in  evidence  that  the  defendant  had  acknowledged  the  receipt  of 
funds  from  the  maker,  wherewith  to  discharge  the  debt,  it  was  held  that  a 
prorais*'  was  implied  thus  to  apply  the  money,  and  the  plaintiff  was  held 
entitled  to  recover  upon  his  count  for  money  paid. — b. 

213 


200  EXECUTED    CONSIDERATIONS.  [lECT.  Y. 

action  for  money  paid  to  his  use,  founded  on  that  im-  | 
plied  promise  (/).  The  cases  where  goods  have  been 
supplied  to  children  without  the  knowledge  or  express 
request  of  the  father,  are  illustrations  of  this  rule.  Even 
where  the  goods  supplied  are  necessaries,  some  recogni- 
tion amounting  to  adoption  is  requisite,  in  order  to 
render  the  father  liable,  and  to  suj^port  the  implied  re- 
quest and  promise ;  in  such  case  it  has  often  been  con- 
sidered sufficient  that  the  father  should  have  seen  them 
worn  by  the  child  without  objection  [g).  See  1  Wms. 
Saund.  264,  note  1,  where  you  may,  if  you  please,  find 
a  great  deal  of  valuable  information  upon  the  whole 
subject  of  which  I  am  now  treating.^  It  is  obvious  that 
the  same  rule  will  apply  where  one  man  does  work  for 
another  without  his  request,  as  when  he  purchases  or 
supplies  goods  for  him.  But  suppose  such  a  case  as 
this  :  I  do  valuable  work  on  your  property  without  your 
^'knowledge,  have  I  a  claim  on  you  for  pay- 
'-  -I  ment  ?  "  How  can  you  help  it  ?  One  cleans 
another's  shoes,  what  can  the  other  do  but  put  them  on? 
Is  that  evidence  of  a  contract  to  pay  for  the  cleaning  ? 
The  benefit  of  the  service  could  not  be  rejected  without 
refusing  the  property  itself."  Adoption,  and  taking 
advantage  of  the  benefit  of  the  consideration  may  be  such 
recognition  or  acceptance  of  services  as  may  be  sufficient 
to  show  an  implied  contract  to  pay  for  them,  if,  at  the 
time,  the  defendant  had  power  to  accept  or  refuse  it. 

(/)  See  Coles  v.  Bulman,  6  C.  B.  (60  E.  C.  L.  E.)  184. 
((/)  Law  V.  Wilkin,  6  A.  &  E.  (33  E.  C.  L.  E.)  718.    See  Mortimore  v. 
Wright,  6  M.  &  W.  482;  Linnegar  v.  Hodd,  5  C.  B.  (57  E.  C.  L.  E.)  437. 


^  Instances  of  the  application  of  this  rule  will  be  found  in  Pawle  v.  Gunn,  4 
Bing.  N.  C.  (33  E.  C.  L.  E  )  445;  Derby  v.  Wilson,  14  Johns.  378 ;  Eowntree  v, 
Holloway,  13  Ala.  357  ;  Kenan  v.  HoUoway,  16  lb.  58  ;  Guerard  v.  Jenkins,  1 
Stiob.  171.— B. 

214 


LECT.  v.]  EXECUTED    CONSIDERATIONS.  201 

Without  such  power,  acceptance  of  the  service  is  no 
evidence  of  a  promise  to  pay  for  it  {h)} 

The  thii'd  case,  in  which  a  request  is  implied,  is  that 
in  wliich  a  person  does,  without  compulsion,  that  which 
the  person  sought  to  be  charged  was  compellable  by  law 
to  do.  Suppose,  for  instance,  A.  owes  B.  £50,  and  C. 
pays  it :  now  here,  if  A.  promise  to  repay  C,  it  will  be 
implied  that  the  payment  by  C.  was  made  at  his  re- 
quest [i).  But,  in  this  class  of  cases,  you  will  observe, 
though  the  request  is  implied  where  there  is  a  promise, 
yet  the  promise  must  be  express,  for  the  law  will  not  im- 
ply one,  as  in  the  two  last  cases  {k)  :  thus,  if  A.  is  B.'s 
*surety,  and  is  forced  to  pay  his  debt,  the  law  p^onoi 
Implies  a  request  to  pay  it,  and  a  promise  to  ^  -^ 
repay.  If  he  be  not  B.'s  surety,  but  pays  it  of 
his  own  accord,  the  law  implies  neither  promise  nor 
request,  for  a  man  cannot  make  me  his  debtor  by 
paying  money  for  me  against  my  will.^  Yet,  even 
in  this  case,  if  B.  expressly  promise  to  repay  it,  a 
request  by  him  to  pay  it  is  implied,  for  it  is  a  maxim 

(h)  Taylor  v.  Laird,  25  L.  J.  (Ex.)  332,  Pollock,  C.  B. ;  Boulton  i'.  Jones,  27 
L.  J.  (Ex.)  117.  See  British  Empire  Shipping  Company  v.  James,  27  L.  J. 
(Q.  B.)  397  ;  confirmed  in  House  of  Lords,  30  L.  J.  (Q.  B.)  229. 

(i)  Wing  V.  Mill,  1  B.  &  Aid.  lOi. 

{k)  Atkins  v.  Banwell,  2  East,  505 ;  Eex  v.  Oldland,  4  A.  &  E.  (31  E.  C.  L. 
R.)  929. 


^  Implied  contract  to  pay  for  services  may  be  rebutted  by  proof  of  relation- 
ship: Smith  V.  Milligan,  43  Pa.  St.  107;  Duffey  v.  Duffey,  44  lb.  399;  Hart- 
man's  Appeal,  3  Grant,  271 ;  Ame/s  Appeal,  49  Pa.  St.  126  ;  Butler  v.  Slam, 
50  lb.  456  ;  Danbenspeck  v.  Powers,  32  Ind.  42.  It  is  a  general  rule  that  when 
a  child  continues  with  the  parent  after  coming  of  age  no  express  contract  for 
wages  being  shown,  the  presumption  is  that  no  wages  are  to  be  paid,  but  this 
presumption  may  be  rebutted:  Adams  w.  Adams' Adm'rs,  23  Ind.  190;  Hart 
V.  Hess,  41  Mo.  441. — s. 

«  Durnford  v.  Messiter,  5  M.  &  S.  445  ;  "Weakly  v.  Braham,  2  Stew.  500 ; 
Keenan  v.  HoIIoway,  supra;  Lewis  v.  Lewis,  3  Strobh.  532 ;  Mathews  v.  Col- 
borne,  1  lb.  258 ;  Young  v.  Dribbell,  7  Humph,  270. — B. 

215 


202  EXECUTED   CONSIDERATIONS.  [lECT.  V. 

that  omnis  ratihabitio  retrotrahitur   et  mandato  cequi- 
paratur} 

111  the  three  cases  I  have  just  put,  the  law  implies  a 
request,  on  the  part  of  the  person  sought  to  be  charged, 
to  do  that  which  is  relied  on  as  the  consideration  for  the 
promise  upon  which  it  is  sought  to  charge  him.^ 


^  Windsor  v.  Savage,  9  Mete.  348 ;  Lewis  v.  Lewis,  S  Strobh.  530 ;  1  Saund. 
264,  n.— R. 

A  voluntary  payment  of  money  by  one  person  for  the  use  of  another  with- 
out a  previous  request,  will  not  support  a  subsequent  promise  to  refund,  unless 
the  payment  is  beneficial  to  the  promisor:  Kenan  v.  Holloway,  16  Ala.  53. 
See  Turner  v.  Partridge,  3  P.  &  W.  172. 

*  The  salutary  legal  principle  whioJi  lies  at  the  bottom  of  all  the  cases  upon 
this  subject  is,  that  every  legal  liability  must  spring  from  something  actually 
done,  and  not  from  something  merely  said.  From  this,  it  is  easy  to  perceive 
how  it  is,  that  from  certain  acts  the  law  will  imply  a  promise,  which  shall  be 
60  highly  regarded  that  an  express  promise  shall  not  be  allowed  to  vary  it 
(Hopkins  v.  Logan,  &c.,  infra),  and  while  at  the  same  time  it  will  disregard 
the  most  solemn  verbal  undertaking  that  does  not  spring  from  some  actual 
transaction.  Hence  it  is,  that  a  warranty  after  a  sale  cannot  be  enforced,  nnless 
something  new  be  done  at  the  time  of  giving  the  warranty,  for  the  promise 
stands  upon  words  and  not  upon  acts:  Roscorla  v.  Thomas,  infra ;  Hogins  v. 
Plympton,  11  Pick.  97;  Williams  v.  Hathaway,  19  Pick.  387 ;  Bloas  r.  Kit- 
tridge,  5  Vt.  28.  In  like  manner,  an  undertaking  by  a  landlord  for  his  ten- 
ant's quiet  enjoyment,  is,  when  made  after  the  contract  of  tenancy  has  been 
entered  into,  wholly  ineffectual  for  any  purpose :  Granger  v.  Collins,  6  M.  & 
W.  458.  So,  after  a  bargain  has  been  made,  a  naked  promise  to  pay  more  or 
take  less  than  the  contract  price,  is  useless  to  the  party  receiving  it :  Geer  v 
Archer,  2  Barb.  420;  Williams  ».  Hathaway,  19  Pick.  387.  And  the  reaso» 
of  these  cases  is  obvious,  from  the  danger  which  would  arise  if  mere  conversa- 
tions, unsupported  by  acts,  Avere  allowed  to  go  to  a  jury,  as  evidence  fron? 
which  they  might  mould  them  into  contracts.  Hence,  too,  arises  an  important 
class  of  cases,  which  determine  that  a  precedent  debt  cannot,  of  itself,  form  a 
sufficient  consideration  for  a  promise,  for  such  a  debt  arises  from  a  contract 
already  fulfilled,  and  therefore  comes  within  the  legal  principle  just  stated: 
Hopkins  v-  Logan,  5  M.  «&  W.  241 ;  Vadakin  v.  Soper,  1  Aik.  287 ;  Rus«ell  v. 
Buck,  11  Vt.  176;  Barker  v.  Bucklin,  2  Den.  59;  Eaiiroad  Co.  v.  Johnson,  7 
"W-  &  S.  317-328;  Jackson  v.  Jackson,  7  Ala.  791  ;  although,  when  snch  a 
promise  is  cotemporaneous  with  an  actual  transaction,  such  as  a  suspension,  or 
an  extinguishment  of  the  precedent  debt,  the  acquisition  of  an  additional 
security  for  its  payment,  the  commencement  of  a  new  course  of  dealing,  or  the 
like,  it  will  be  enforced  by  law,  for  it  does  not  rest  on  mere  words :  Peate  ti. 
Dicken,  1  Cr.,  M.  &  R.  423;  Wilson  v.  Coupland,  5  B.  &  Aid  (7  E.  C.  L.  R.) 
228;  Clark  v.  Sigourney,  17  Conn.  511;  Phillips  v.  Bergen,  2  Bai-b.  608; 
216 


LECT.  v.]  MORAL   CONSIDERATIONS.  202 

There  is  a  fourth  class  of  cases,  in  which  the  con- 
sideration relied  on  has  been  that  one  man  has  done  for 

Smith  V.  Weed,  20  Wend.  184 ;  Weld  v.  Nichols,  17  Pick.  588 ;  Taylor  v. 
Meek,  4  Blackf.  388. 

The  sound  reasons  for  what  would  at  first  appear  to  be  a  pertinacious  ad- 
herence to  a  narrow  rule,  are  thus  expressed  by  Mr.  Hare,  after  a  review  of 
the  authorities,  in  the  note  to  Vadakin  v.  Soper,  2  Am  L.  C.     "  The  general 
principle,"  said  he,  "  which  requires  that  every  express  contract  shall  be  sus- 
tained by  a  cotemporaneous   consideration,  is,  in  effect,  a  rule  of  evidence  of 
great  importance,  to  the  exclusion  of  fraud  and  misrepresentation  from  the 
tribunals  of  justice.     If  a  mere  verbal  promise,  without  consideration,  were 
sufficient  to  create  a  legal  liability  and  sustain  an  action,  no  safety  could  be 
found  against  the  misrepresentation  of  the  most  ordinary  conversation,  unless 
in  the  sagacity  of  the  jury  called  to  determine  (perchance  on  a  prejudice  or 
false  relation),  whether  it  was  meant  or  understood  as  a  positive  obligation  for 
the  payment  of  money,  or  the  fulfilment  of  an  engagement  of  any  other  de- 
scription.    And  if  a  past  consideration  were  sufficient  to  give  such  an  engage- 
ment validity,  the  danger  would  be  as  great ;  for  men,  though  but  little  dis- 
posed to  promise  further  compensation  for  past  services  in  their  own  case,  are 
sufficiently  ready  to  believe  such  an  allegation  in  that  of  another,  especially 
if  supported  by  any  plausible  pretence,  that  the  amount  originally  bargained 
for  was  insufficient.     The  chance  of  an  erroneous  verdict  would  be  still  greater 
in  those  instances,  in  which  a  bargain  has  resulted  disadvantageously  for  one 
of  the  parties,  and  where  he  has  induced  the  other  to  hold  any  language  which 
can  be  construed  or  perverted  into  a  promise  of  indemnification.     The  neces- 
sity for  proving  the  existence  of   a  cotemporaneous    consideration,  obviates 
this  danger,  by  bringing  the  evidence  back  from  words  to  things,  which  are 
not  so  easily  susceptible  of  mistake  or  falsification.     The  uncertainty  which 
results  from  looking  to  the  subsequent  language  of  a  party,  as  the  test  of  his 
liability,  has  been  found  so  great  in  the  cases  arising  under  the  Statute  of 
Limitations,  as  to  lead  to  the  introduction,  in  England,  and  some  parts  of  this 
country,  of  legislative  enactments,  making  it  necessary  that  the  acknowledg- 
ment of  the  debt  shall  be  in  writing,  and  not  be  proved  by  mere  verbal  testi- 
mony.    Yet  in  that  ca.se,  the  only  eflfect  of  the  evidence  is  to  revive  an  an- 
terior liability,  of  which  the  original  existence  is  proved  aliunde,  and  it  is 
therefore  easy  to  imagine  what  would  be  the  result  if  every  transaction  of 
human  life  were  open  to  the  interpretation  which  a  witness  or  jury  might 
choose  to  give  to  any  subsequent  conversation  of  which  it  is  made  the  subject. 
It  would,  therefore,  appear  that  the  rules  of  the  common  law  with  respect  to 
consideration,  so  far  from  deserving  the  reproach  of  narrowness  and  illiberal- 
ity  which  has  been  sometimes  cast  upon  them,  are  really  founded  upon  a  just 
appreciation  of  the  uncertainty  of  testimony,  and  the  exigencies  of  life,  and 
should  be  sedulously  upheld  and  applied,  and  not  explained  away  or  disre- 
garded.    It  may  safely  be  asserted  that  they  do  more  to  prevent  fraud  and  per- 
jury than  any  legislative  enactment  which  has  been,  or  can  be  devised  for  that 
purpose,   and  that  if  they  had  not  been  laid  down  and  defined  by  jutlicial 
sagacity,  it  would  be  necessary  to  introduce  them  by  legislative  authority." 

217 


202  MOEAL   COIfSIDEEATIONS.  [lECT.  V. 

another  something  which  that  other,  though  not  legally, 
is  morally  bound  to  do.  In  such  cases  it  is  clear,  that, 
if  there  be  no  express  promise  to  remunerate  him,  re- 
muneration cannot  be  enforced.  But  it  has  been  a 
great  question,  and  has  been  frequently  discussed, 
whether,  even  if  there  be  an  express  promise,  any  re- 
quest can  be  implied  in  order  to  support  the  considera- 
tion. On  this  question,  which  is  but  a  branch  of  one 
which  has  been  often  the  subject  of  anxious  considera- 
tion, namely,  in  what  cases  a  moral  obligation  is  a  suffi- 
cient consideration  to  support  a  promise,  it  is  worth 
while  to  read  the  cases  cited  in  the  *note  (/). 
L  ^  oj    jg^^  j^  ^^^  T^^  considered  as  now  settled,  that  a 

merely  moral   consideration  will  not  support  a  prom- 

'    {I)  Lee  V.  Muggeridge,  o  Taunt.  (1  E.  C.  L.  R.)  36 ;  Atkins  v.  Bauwell,  2 
East,  505  ;  and  the  note  to  Wennall  v.  Adney,  3  B.  &  P.  247. 

It  is  necessary  to  distinguish  the  class  of  cases  referred  to,  from  those  which 
decide  that  a  promise  to  pay  a  debt  barred  by  tlie  Statutes  of  Bankruptcy  or 
Limitation  is  based  upon  sufficient  consideration.  Some  expressions  in  the 
cases  would  seem  to  conliict  with  the  general  principle  just  referred  to,  but  in 
reality  the  grounds  of  the  decision  are  in  harmony.  The  promise  of  a  debtor 
to  pay  a  debt  so  barred,  although  it  is  often  called  a  new  promise,  is  in  reality 
rather  a  waiver  of  the  bar  which  the  statute  has  interposed.  In  pleading,  it  is 
sufficient  to  count  on  the  original  debt,  and  when  the  statute  is  pleaded,  the 
evidence  offered  under  the  replication  of  a  new  promise  or  acknowledgment 
within  six  years,  forms  no  variance  between  the  declaration  and  the  proof,  for 
whether  the  defendant  is  liable  by  reason  of  the  original  consideration  for  the 
debt,  or  by  reason  of  his  subsequent  acknowledgment,  is  immaterial,  provided 
the  plaintiff  prove  the  original  consideration,  and  the  liability  at  the  time  of. 
suit  brought,  and  if  that  liability  arises  from  the  new  promise,  it  is  just  such 
a  liability  as  the  law  implies  from  the  old  consideration,  and  hence  the  new 
promise  accords  with  the  old  one,  and  there  is  no  variance.  This  will  be 
found  fully  explained  in  the  note  to  Whitcomb  v.  Whiting,  1  Smith's  L.  C. 
621,  8th  Am.  ed.  But  in  the  ordinary  case  of  a  precedent  debt,  a  declaration 
setting  forth  that  the  plaintiff  had  contracted  to  build  a  wagon  for  $100,  and 
that  having  done  so,  the  defendant,  in  consideration  thereof,  promised  to  pay 
him  ?200,  would  be  clearly  bad,  for  such  a  promise  would  not  be  implied  by 
iaw  from  the  old  consideration,  which  was  the  only  one.  So,  in  the  case  of  an 
indebtedness  to  two  persons  jointly,  a  promise  by  the  debtor,  in  consideration 
of  the  promise,  to  pay  one-half  of  the  debt  to  one  of  them,  could  not  be  en- 
forced, for  it  is  not  such  a  promise  as  the  law  implies  from  the  old  considera- 
tion, and  this  was  the  case  of  Vadakin  v.  Soper,  supra. — K. 
218 


LECT.  v.]  MORAL   CONSIDERATIOIS'S.  203 

ise  {m).  A  mere  moral  consideration  has  been  said  by 
high  authority  to  be  nothing  in  law  {n).  "A  subsequent 
express  promise,"  said  Tindal,  0.  J.,  "  will  not  convert 
into  a  debt  that  which  of  itself  was  not  a  legal  debt"  (o). 
And  the  Court  of  Queen's  Bench,  in  the  case  of  East- 
wood V.  Kenyon  (p),  quotes  with  approval  the  conclu- 
sion arrived  at  in  the  note  to  Wennall  v.  Adney  just 
cited,  "  that  an  express  promise  can  only  revive  a  pre- 
cedent good  consideration,  which  might  have  been  en- 
■forced  at  law  through  the  medium  of  an  implied  prom- 
ise, had  it  not  been  suspended  by  some  positive  rule  of 
law  ;  but  can  give  no  original  cause  of  action,  if  the  ob- 
ligation on  which  it  is  founded  never  could  have  been 
enforced  at  law,  though  not  barred  by  any  legal  maxim 
or  statute  provision  "  {q) }     This  principle  may  be  illus- 

(wi)  Monkman  %  Shepherdson,  11  A.  &  E.  (39  E.  C.  L.  E)  415  ;  Beaumont 
V.  Reeve,  8  Q.  B.  (55  E.  C.  L.  E.)  483.  See  Hicks  v.  Gregory,  8  C.  B.  (G5  E, 
C.  L.  E.)  378. 

(«)  Jennings  r.  Brown,  9  M.  &  W.  501. 

(o)  Kaye  v.  Button,  7  M.  &  Gr.  (49  E.  C.  L.  E.)  807. 

ip)  11  A.  &  E.  (39  E.  C.  L.  E.)  438,  447 ;  Deacon  v.  Gridley,  24  L.  J.  (C. 
P.)  17 ;  15  C.  B.  (80  E.  C.  L.  E.)  295. 

{q)  See  also  Flight  v.  Eeed,  1  H.  &  C.  703,  32  L.  J.  (Ex.)  265,  for  an  illus- 
tration of  this  rule. 


^  In  some  of  the  earlier  American  cases,  there  were  many  dicta  and  a  few 
decisions  in  favour  of  a  moral  consideration  heing  sufEcient  to  support  a 
promise:  Greeves  v.  McAllister,  2  Binn.  591  ;  Willing  v.  Peters,  12  S.  &  E. 
177;  Doty -y.  Wilson,  14  Johns.  378;  but  these  cases,  like  the  English  deci- 
sions in  Lee  v.  Muggeridge,  and  Wing  v.  Mill,  1  B.  &  Aid.  104,  were  subse- 
quently expressly  overruled  by  Snevily  v.  Eead,  9  Watts,  396  ;  Kennedy  v.  W^are, 
1  Pa.  St.  445 ;  Mills  v.  "VVyman,  3  Pick.  207  ;  Beaumont  v.  Eeeve,  8  Q.  B.  (55 
E.  C.  L.  E.)  483  ;  Cook  v.  Bradley,  7  Conn.  57  ;  Loomis  v.  Newhall,  15  Pick. 
159 ;  Dodge  v.  Adams,  19  lb.  429  ;  Kinnerly  v.  Morton,  8  Mo.  698 ;  Kenan 
V.  HoUoway,  16  Ala.  58  ;  and  such  a  doctrine  may,  perhaps,  be  now  fairly  con- 
sidered as  having  no  established  place  in  the  jurisprudence  of  either 
country. — r. 

See  EUicott  v.  Peterson,  4  ]\rd.  476  ;  Womack  v.  Womack,  8  Tex.  397  ;  Tur- 
ner V.  Chrisraan,  20  Ohio,  332 ;  M'Farland  v.  Mathis,  10  Ark.  560 ;  Nash.  v. 
Russell,  5  Barb.  556;  Watkins  v.  Halstead,  2  Sand.  311;  Geer  v.  Archer,  2 
Barb.  420 ;  M'Kinley  v.  O'Keson,  5  Pa.  St.  369.    There  would  appear,  how- 

219 


203  MORAL   CONSIDERATIONS.  [lECT.  V 

trated  by  the  case  of  a  debt  barred  by  tbe  Statute  of 
Limitations,  a   promise   to   pay  which,  if  duly  made, 

ever,  to  be  authority  for  an  important  exception  to  the  general  principle  that 
a  moral  obligation   is  not  a  sufficient  consideration.      Wherever  an   actual 
benefit  has  been  enjoyed  from  the  unsolicited  services  of  another,  it  is  a  suffi- 
cient foundation  for  an  express  promise,  although  no  promise  will  be  implied. 
Thus,  an  uncompleted  contract  on  a  railroad  was  assigned  by  the  contractor  for 
the  benefit  of  creditors.     There  was  in  the  hands  of  the  railroad  company  a 
fund  consisting  of  retained  percentage,  the  assignor's  right  to  which  depended 
upon  the  completion  of  the  contract.     The  assignor  made  a  contract  with  the 
plaintiff"  that  he  should  complete  the  contract  at  his  own  expense,  and  receive 
a  certain  compensation.     The  creditors,  for  whose  benefit  the  assignment  had 
been  made,  drew  an  order  on  the  assignee  in  favour  of  plaintiflT,  for  the  amount 
expended  by  him  on  the  work,  and  for  a  certain  sum  for  his  trouble.     It  was 
held  that  the  work  having  been  completed  by  the  plaintiflT,  the  order  became 
irrevocable,  whether  drawn  before  or  after  performance  of  the  work.     And 
one  of  the  creditors  receiving  a  dividend  out  of  the  fund  from  the  assignee,  is 
liable  to  the  plaintiff  in  an  action  for  money  had  and  received :  Cunningham 
V.  Garvin,  10  Pa.  St.  366.     Bell,  J.:  "If  it  be  admitted  that  the  order  was 
made  after  the  completion  of  the  work,  we  have  a  case  of  a  past  consideration 
flowing  from  a  benefit  conferred.     Kow,  though  anciently  this  was  thought 
inadequate  to  support  a  present  promise  to  pay,  it  has  long  been  settled  that  a 
benefit  derived  from  the  unsolicited  services  of  another,  creates  a  moral  obli- 
gation of  sufficient  potency  to  sustain  an  express  promise."     On   the  other 
hand,  where  a  grandfather  devised  to  his  grandson  a  tract  of  land,  which,  by 
his  will,  he  directed  should  be  patented,  and  the  price  thereof  paid  out  of  his 
estate,  an   uncle  of  the  devisee's   obtained   the   patent  and  paid  for  it,  and 
brought  an  action  against  the  executors  of  the  grandfather's  estate  to  recover 
it  back ;  it  was  decided  that  it  was  a  voluntary  payment  by  him  which  gave 
no  right  of  action  :  Turner  v.  Patridge,   3  P.  &  W.  172.     Gibson,  C.  J.:  "In 
procuring  the  patent  without  compulsion  of  the  law,  or  request  of  the  party 
interested,  the  plaintiff  laid  the  defendants  under  a  moral  obligation,  which, 
though  sufficient  as  a  consideration  for  an  express  promise,  raised  no  promise 
by  implication  of  law :"  Baker  v.  Gregory,  28  Ala.  544.     Taxes  were  paid 
through  mistake  by  one  not  the  owner,  and  the  owner  promised  to  repay.    The 
promise  and  benefit  were  held  equivalent  to  a  previous  request :  Nixon  v. 
Jenkins,  1    Hilt.  318.     When  one  partner  purchases  of  his   copartner   his 
interest  in  the  partnership  property,  under  a  mistake  as  to  the  true  condition  of 
the  partnership  accounts,  but  without  fraud  in  the  partner  selling,  there  is  no 
legal  consideration  for  a  promise  of  the  latter  to  make  up  the  amount  of  the 
mistake.     The  moral  consideration  is  insufficient :  Eakin  v.  Fenton,  15  Ind. 
69.     It  is  a  general  but  not  a  universal  rule  that  a  moral  obligation  is  a  suffi- 
cient consideration  to  uphold  an  express  promise :  Montgomery  v.  Lampton, 
3  Mete.  (Ky.)  519.     An  express  promise  to  pay  for  past  expenditures  made 
by  a  third  person  for  a  parent  is  not  bindirig  on  the  child  for  want  of  con- 
sideration:  Dawson  v.  Dawson,  12  Iowa,  512.     A  mere  moral  obligation  con- 
stitutes no  legal  consideration  for  a  contract :  Updike  v.  True,  13  N.  J.  Eq. 

220 


LECT.  V.J  CONSIDERATIOIS'.  204 

*as  we  shall  see  hereafter,  takes  the  debt  out  of  p.:.^^- .-, 
the  protection  of  the  statute  and  makes  the  "-  -• 
debtor  hable  (r). 

I  have  now  said  what  I  intended  to  say  with  regard 
to  the  sufficiency  of  the  consideration,  and  the  result 
may  be  thus  summed  up  : — 

Any  advantage  to  tlie  person  promising,  or  damage, 
inconvenience,  liability,  or  cliarge  to  the  person  to 
whom  the  promise  is  made,  constitutes  a  sufficient  con- 
sideration to  uphold  a  promise ;  but,  if  tliat  considera- 
tion be  executed,  that  is,  if,  at  the  time  of  making  the 
promise,  that  which  is  to  be  the  consideration  for  it  has 
already  taken  place,  in  such  case  there  must  have  been 
a  request  by  the  person  promising,  in  order  to  render 

(r)  It  seems,  however,  not  to  be  illustrated  in  the  case  of  a  debt  released  by 
a  discharge  in  bankruptcy  ;  for  it  has  been  held  on  the  construction  of  s.  49 
of  the  now  repealed  Bankruptcy  Act  of  18C9  (32  &  33  Vict.  c.  71),  that,  when 
a  debt  has  been  released  by  an  order  of  discharge  under  that  section,  a  subse- 
quent promise  to  pay  cannot  be  enforced  ( Heather  v.  Webb,  2  C.  P.  D.  1 ;  46 
L.  J.  (Q.  B.  etc.)  89j  ;  unless  it  is  founded  on  a  new  and  valuable  considera- 
tion (Jakeman  v.  Cook,  4  Ex.  Div.  26;  48  L.J.  (Q.  B.,  etc.)  165);  and  this 
would  seem  to  be  still  the  law  under  the  corresponding  section  of  the  Bank- 
ruptcy Act  of  1883  (46  &  47  Vict.  c.  52),  viz.,  s.  30,  which  in  this  respect 
seems  undistinguishable  from  s.  49  of  the  old  Act. 


351 ;  Shepard  v.  Rhodes,  7  R.  1.470.  The  moral  obligation  of  the  original 
contract  is  a  sufficient  consideration  for  a  promise  to  perform  it  made  within 
the  time  limited  by  the  statute,  and  such  a  promise  will  remove  the  bar  of 
the  Statute  of  Limitations:  Pritchard  v.  Howell,  1  Wis.  131.  Where  there 
is  a  precedent  duty,  which  would  create  a  sufficient  legal  or  equitable  right  if 
there  had  been  an  express  promise  at  the  time,  or  where  there  is  a  precedent 
consideration  which  is  capable  of  being  enforced,  and  is  not  extinguished, 
unless  at  the  option  of  the  party,  founded  upon  some  defence  which  the  law 
justilies  but  does  not  require  him  to  assert,  an  express  promise  will  create  or 
revive  a  just  cause  of  action.  So  if  a  contract  is  voidable,  but  founded  on  a 
consifleration  otherwise  valuable,  an  express  promise  will  support  it:  but  not 
if  it  is  originally  void.  A  promise  hy  a  woman  who  is  sole  to  pay  a  debt 
contracted  while  she  was  covert  will  not  be  valid,  because  such  contract  is  ab 
oricf-ine  void,  and  not  voidable :  Porterfield  v.  Butler,  47  Miss.  165 ;  and  see 
Shepard  v.  Rhodes,  7  R.  I.  470 ;  Musser  v.  Ferguson,  55  Pa.  St.  475 ;  Cobb  r. 
Cowdery,  40  Vt.  25 ;  Seymour  v.  Marlboro,  lb.  171.— s. 

221 


204  PROMISE.  [lect.  v. 

such  a  consideration  sufficient.  If  an  express  request 
can  be  shown,  there  can  be  no  difficulty  ;  but,  if  not, 
the  law  will  imply  one  in  certain  cases,  and  those  cases 
are — 

r*9n^'l        ^^^^'  Where  the  consideration  consists  in  the 
person  to  whom  the  promise  is  made  being 
compelled  to  do   that  which  the  person  making 
it  ought  to   have  done,  and  was   compellable   to 
do. 
2ndly.  Where  the  consideration  consists  in  something 
the   benefit   of  which    the   person   promising   has 
adopted  and  enjoyed. 
3rdly.  Where  the  consideration  consists  in  the  person 
to  whom  the  promise  is  made  having  voluntarily 
done  that  which  the  person  promising  ought  to  have 
done,  and  was  compellable  to  do,  in  which  third  case 
the  promise  must  be  an   express   one,  wdiereas   in 
the  two  former  the  law  implies  the  promise  as  well 
as  the  request. 
The  remaining  part  of  a  contract  is  the  promise,  as  to 
which  the  law  in  general  leaves  to  the  will  of  the  parties 
this  part  of  their  mutual  arrangement.     Indeed,  this  has 
almost  been  said  already  in  other  words ;  for,  where  it  is 
laid  down  that  the  law  will  not  weigh  the  adequacy  of  the 
consideration  (s),  it  is  implied  that  it  will  not  weigh  that 
of  the  promise.     The  law,  however,  will  no  more  enforce 
an  illegal  promise  than  an  illegal  consideration ;  but  in 
cases  of  executed  contracts  there  is  a  rule  of  law  which 
is  well  worthy  of  attention.     It  is,  that  where  the  law 
r*9nri    i^""?^!^^  ^  certain  promise  *from  a  consideration 
executed — that  consideration  will  not  support 
any   other  promise  than  the  one  which  the  law  im- 
plies {t).     It  is  not  difficult  to  see  that  this  rule  results 

(«)  Ante,  p.  *176 

(0  Elderson  v.  Emmens,  6  C.  B.  (60  E.  C,  L.  E.)  160,  in  Exchequer  Chamber. 
222 


LECT.  v.]  PROMISE.  206 

from  tlie  principle  which  requires  that  every  promise 
should  be  supported  by  a  consideration ;  for,  when  the 
consideration  in  question  is  one  from  which  the  law  im- 
plies a  certain  promise,  that  promise  evidently  exhausts 
the  consideration,  and  there  is  nothing  left  to  suj^port 
any  other  promise.  Such  promise,  consequently,  how- 
ever expressly  made,  is  nudum  pactum.  Thus,  it  has 
been  decided  (u),  that  an  account  stated  and  a  sum 
thereupon  found  to  be  due  to  the  plaintiff  from  which 
the  law  implies  a  promise  to  pay  in  prcesenti,  will  not 
support  a  promise  to  pay  in  fuiuro ;  and  each  of  the 
Judges  {v)  said,  that,  in  order  to  render  the  promisor 
liable  to  pay  on  a  future  day,  there  ought  to  be  some 
new  consideration.  Similar  in  principle  to  the  instance 
just  mentioned  is  the  case,  where  one,  having  become 
tenant  to  another  of  a  farm,  undertook  to  make  a  certain 
quantity  of  fallow,  to  spend  £60  worth  of  manure  yearly 
thereon,  and  to  keep  the  buildings  in  repair :  an  under- 
taking which  was  considered  unavailable  *in  r^oA/j-i 
law  because  no  other  consideration  existed  but 
the  foct  that  the  relation  of  landlord  and  tenant  had 
been  created  between  the  parties,  and  the  obligations 
sought  to  be  enforced  are  not  implied  by  law  from  that 
mere  fact  {x).  The  promise,  as  the  Court  of  Exchequer 
said  in  a  subsequent  and  closely  analogous  case  (?/),  is 
laid  more  largely  than  the  law  will  imply  from  such  a 
relation. 

Another  instance  of  the  sanie  principle,  drawn  from 
a  different  class  of  cases,  is  afforded  by  the  case  of 

(m)  Hopkins  v.  Logan,  5  M.  &  W.  241 ;  Granger  r.  Collins,  6  M.  &  W.  458  ; 
Eoscorla  r.  Thomas,  3  Q.  B.  (43  E.  C.  L.  R.)  234.  See  Walker  v.  Eostron,  9 
M.  &  W.  411 ;  and  1  Smith,  L.  C.  163,  8th  ed. 

(v)  Lord  Abinger,  C.  B.,  and  Parke,  Alderson,  and  Mavle,  B.B.,  in  Hopkins  v. 
ivOgan,  supra, 

[x)  Brown  v.  Crump,  1  Marsh.  567. 

iy^  Granger  v.  Collins,  6  M.  &  W.  458 ;  Jackson  v.  Cobbin,  8  M.  &  W. 
790. 

223 


207  ILLEGAL  CONTEACTS.         [lECT.  Y. 

Koscorlii  V.  Thomas  (z),  in  which  the  declaration  alleged 
that,  in  consideration  that  the  plaintiff  had  bouglit  a 
horse  of  the  defendant  at  a  certain  price,  the  defendant 
promised  that  it  did  not  exceed  five  years  old,  and  was 
sound  and  free  from  vice ;  and  the  plaintiff  having 
obtained  a  verdict,  the  Court  arrested  the  judgment,  be- 
cause the  only  promise  which  could  be  implied  from  the 
consideration  was  to  deliver  the  horse  upon  request;  and, 
therefore,  however  expressly  the  promise  alleged  might 
have  been  made,  the  consideration  would  not  support  it. 
Proceeding  in  the  order  in  which  I  stated  to  you  that 
it  was  my  intention  to  proceed,  the  next  subject  at  which 
we  arrive  is,  the  effect  of  illegality  u^^on  the  contract. 
r*9nm  ^nd,  upon  this  subject,  I  have  ^already  said 
generally,  that  every  contract,  be  it  by  deed,  or 
be  it  without  deed,  is  void  if.it  stipulate  for  the  perform- 
ance of  an  illegal  act,  or  if  it  be  founded  upon  an  illegal 
consideration.  Ex  turpi  causa  non  oritur  actio  is  the 
maxim  of  our  law,  as  well  as  of  the  civil.^     A  deed,  for 

(2)  3  Q.  B.  (43  E.  C.  L.  K.)  234. 

^  [Note  by  Mr.  J.  C.  Symons.]  It  is  immaterial  whether  the  illegality  be 
part  of  or  only  intoductory  to  the  cause  of  action ;  if  the  plaintiff  requires  any 
aid  from  an  illegal  transaction  to  make  out  his  case,  he  cannot  maintain  it: 
Simpson  v.  Bloss,  7  Taunt.  (2  E.  C.  L.  R.)  246 ;  [Scott  v.  Duffy,  15  Pa.  St.  18 ; 
Deering  v.  Chapman,  22  Me.  448.]  This  rule  was  upheld  in  the  very  recent 
case  of  Fivaz  v.  Nicholls,  15  L.  J.  125,  C.  P.  [2  C.  B.  (52  E.  C.  L.  R.)  500,] 
where  the  plaintiff  brought  an  action  on  the  case  against  the  defendant  for 
having  corruptly  conspired  to  cheat  the  plaintiff,  and  deprive  him  of  his  costs 
in  a  previous  action  on  a  bill  of  exchange,  in  which  the  plaintiff  obtained 
judgment  on  the  ground  that  it  was  given  for  an  illegal  consideration ;  but  it 
having  appeared  that  the  bill  had  been  originally  endorsed  by  the  plaintiff  to 
the  defendant  to  compromise  a  felony,  this  illegality  being  the  foundation  of 
the  subsequent  action,  was  held  to  invalidate  it.  [And  to  the  same  effect  are 
Bridge  v.  Hubbard,  15  Mass.  96;  Tuthill  v.  Davis,  20  Johns.  287 ;  Edwards  v. 
Skirving,  1  Brev.  548 ;  Coulter  v.  Robertson,  14  Sm.  &  M.  29,  where  the 
illegality  of  the  original  consideration  was  held  to  taint  all  the  subsequent 
securities  flowing  from  it. — K.] 

It  is  well  settled  that  i-n  reference  to  all  acts  or  contracts,  which  are  unlaw- 
ful on  account  of  their  immorality  or  their  tendency  to  promote  it,  or  because 
they  are  hostile  to  public  policy,  the  parties  thereto  are  in  pari  delicto.    So, 

224 


LECT.    Y.]  ILLEGAL   CONTRACTS.  208 

the  purpose  of  charging  the  maker,  requires,  as  we  have 
seen,  no  consideration  at  all  to  support  it ;  but  an  illegal 
consideration  is  worse  than  none,  and  if  it  be  founded 
upon  such  an  one,  it  will  be  void,  nor  will  the  rules  re- 
lating to  estoppel  prevent  the  party  from  setting  that 
defence  up.  A  simple  contract  requires,  as  we  have 
seen,  a  consideration  to  support  it.  If  the  consideration 
be  illegal,  it  is  a  fortiori  void  ;  nor  will  the  rules  which 
I  endeavoured  to  explain  regarding  the  inadmissibility 
of  parol  evidence  to  contradict  a  writing,  prevent  that 
defence  from  being  set  up  where  the  illegality  does  not 
appear  on  the  face  of  the  instrument,  any  more  than  the 
doctrine  of  estoppel  will  avail  to  prevent  inquiry  into 
the  true  consideration  for  a  deed.  Parties  cannot  de- 
ceive the  law  by  the  form  of  their  contracts ;  and,  as  an 
illegality  in  the  consideration  is  fatal,  so,  and  upon  the 
very  same  grounds,  is  one  in  the  promise.  "  You  shall 
not,'^  says  the  L.  C.  J.,  in  Collins  v.  Blantern  (a),  "stipu- 
late for  iniquity  J^^ 

(a)  2  Wils.  341,  1  Smith,  L.  C.  387,  8th  ed.    See  ante,  p.  *18,  where  this  sub- 
ject is  partially  treated  of. 


money  paid  or  land  conveyed  on  an  immoral  contract,  cannot  be  recovered 
back :  White  v.  Hunter,  23  N.  H.  128.  Every  new  agreement  entered  into 
for  the  purpose  of  carrying  into  efTect  any  of  the  unexecuted  provisions  of  a 
previous  illegal  contract  is  void :  Gray  v.  Hook-,  4  N.  Y.  449. 

When  money  due  on  an  illegal  contract  is  paid  to  an  agent  of  one  of  the 
parties,  such  agent  being  no  party  in  interest  to  the  illegal  contract,  cannot  set 
up  the  illegality  as  against  the  claim  of  his  principal :  Evans  v.  Trenton,  24 
N.  J.  764.  Vv'here  an  obligor  sued  on  his  bond,  which  exhibits  no  evidence 
of  fraud,  interposes,  by  way  of  defence,  a  fraudulent  agreement  between  him- 
self and  the  obligee,  he  becomes  the  actor ;  and  the  maxim  in  pari  delicto  melior 
est  conditio  possidentis  aut  defendentis,  is  applied  against  him  and  not  in  his 
favor :  Hendrickson  v.  Evans,  25  Pa.  St.  441 .  A  party  to  an  illegal  contract 
will  not  be  permitted  to  avail  himself  of  its  illegality,  until  he  restores  to  the 
other  party  all  that  had  been  received  from  him  on  such  illegal  contract : 
Hunt  V.  Turner,  9  Tex.  385.  And  see  also  Jones  v.  Davidson,  2  Sneed,  447 ; 
Gibson  v.  Pearsall,  1  E.  D.  Sm.  90 ;  Bates  v.  Watson,  1  Sneed,  376 ;  Schermer- 
horn  V.  Talman,  14  N.  Y.  93 ;  Tracy  v.  Talmage,  lb.  162.— s. 

'  Where  an  entire  agreement  contains  an  element  which  is  legal  and  one 

15  225 


208  ILLEGAL  CONTEACTS.        [lECT.  V. 

If  the  consideration  be  legal,  a  promise  to  do  several 

acts,  some  illegal  and  some  legal,  renders  *the 

•-         -'    contract  void  as  to  the  illegal  acts ;  but  if  any 

part  of  the  consideration  be  illegal,  the  whole  contract 

fails  (b)} 

Now  illegality  is  of  two  sorts :  it  exists  at  common 
law,  or  is  created  by  some  statute. 

A  contract  illegal  at  common  law  is  so  on  one  of  three 
grounds  :  either  because  it  violates  morality  ;  or  because 
it  is  opposed  to  the  policy  of  the  law ;  or  because  it  is 
tainted  with  fraud. 

Of  the  first  class, — those,  namely,  which  are  void  be- 
cause they  violate  the  principles  of  morality — you  will 
find  an  example  in  the  case  of  Fores  v.  Johnes  (c),  in 
which  Mr.  Justice  Lawrence  held,  that  a  printseller 
could  not  recover  the  price  of  libellous  publications 
which  he  had  sold  and  delivered  to  the  defendant. 
"  For  prints,"  said  his  Lordship,  "  whose  objects  are 

(6)  Ante,  p.  *20.    See  also  Harrington  v.  Victoria  Graving  Dock  Co.,  3  Q. 
B.  D.  549 ;  47  L.  J.  (Q.  B.)  594. 
(c)  4  Esp.  97. 


which  is  against  public  policy  and  therefore  void,  the  legal  consideration  cannot 
be  separated  from  that  which  is  illegal  so  as  to  found  an  action  on  it :  Boss  v. 
Truax,  21  Barb.  361 ;  Pettit  v.  Pettit,  32  Ala.  288  ;  Collins  v.  Merrell,  2  Mete. 
(Ky.)  163;  Valentine  v.  Stewart,  15  Cal.  387  ;  Gelpcke  ».  Dubuque,  1  Wall. 
221.— s. 

^See  ante,  p.  *20,  note  1.  When  the  consideration  is  indivisible,  and  is 
illegal,  the  contract  is  void.  But  when  the  Court  can  divide  the  consideration, 
it  may  be  possible  to  reject  what  is  illegal,  and  yet  to  support  tlie  promise 
upon  that  part  which  is  valid.  As,  for  example,  where  a  part  of  the  con- 
sideration failed  as  falling  within  the  Statute  of  Frauds,  but  the  remainder 
was  held  sufficient  to  uphold  the  contract :  Mayfield  v.  W^adsley,  3  B.  &  C.  (10 
E.  C.  L.  R.)  361.  AVhere  there  are  several  amsiderations,  and  some  are  illegal, 
these  may  be  disregarded  as  merely  cumulative  grounds  for  the  promise,  which 
rests  upon  the  valid  considerations :  Jones  v.  W^aite,  1  Bing.  N.  C.  (27  E.  C. 
L.  R.)  341 ;  Shackell  v.  Rosier,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  646;  King  v. 
Sears,  2  C.  M.  &  E.  48 ;  Crookshank  v.  Rose,  5  C.  &  P.  (24  E.  C.  L.  R.)  19, 
Andrews  v.  Ives,  3  Conn.  368 ;  Loomis  v.  Newhall,  15  Pick.  159 ;  Treadwell  v. 
Davis,  34  Cal.  601 ;  Goodwin  v.  Clark,  65  Me.  280. 

226 


I 


LECT.  v.]  ILLEGAL   CONTRACTS.  209 

general  satire  or  ridicule  of  prevailing  fashions  or  man- 
ners, I  think  the  plaintiff  may  recover ;  but  I  cannot 
permit  him  to  do  so  for  such  whose  tendency  is  immoral, 
nor  for  such  as  are  libels  on  individuals,  and  for  which 
the  plaintiff  might  be  rendered  criminally  answerable 
for  a  libel."  ^ 

For  tliis  reason  the  printer  of  an  immoral  and  libel- 
lous work  cannot  maintain  an  action  for  the  price  of 


'So  it  was  held  that  the  printer  of  the  "Memoirs  of  Harriet  Wilson" 
could  not  recover  the  price  of  printing  them,  the  work  being  immoral  and 
libellous:  Poplett  v.  Stockdale,  2  C.  &  P.  (12  E.  C.  L.  R.)  198. 

Nothing  is  better  settled  than  that  a  promise  in  consideration  of  future 
illicit  cohabitation  is  void :  Walker  v.  Perkins,  3  Burr.  1568  ;  Rex  v.  Inhabi- 
tants of  Withringfield,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  912;  Winnebrun  v.  Weisi- 
ger,  3  Mon.  35 ;  Travinger  v.  M'Burney,  5  Cow.  253 ;  and  it  is  immaterial 
whether  such  promise  be  or  be  not  backed  by  the  solemnity  of  a  seal :  Walker 
V.  Perkins.  But  where  the  sealed  instrument  is  given  in  consideration  of  past 
seduction  or  cohabitation,  it  will  be  enforced :  Turner  v.  Vaughan,  2  Wils.  339  ; 
Wye  V.  Mosely,  6  B.  &  C.  (13  E.  C.  L.  R.)  133;  while  a  parol  promise,  based 
npon  such  a  consideration,  is  worthless  :  Beaumont  v.  Reeve,  8  Q.  B.  (55  E.  C. 
L.  R.)  483;  Singleton  v.  Bremar,  Harp.  201.  The  distinction  between  these 
classes  of  cases  is  this :  all  contracts,  whether  sealed  or  parol,  based  upon 
future  immoral  connection,  are  void,  because  to  enforce  them  would  be  to  offer 
a  premium  for  future  immorality.  And  all  parol  contracts  in  consideration  of 
past  connection  are  void,  on  the  simple  ground  of  the  consideration  being  exe- 
cuted, and  the  transaction  not  being  such,  as  according  to  the  rules  already 
explained,  the  law  would  imphj  a  promise  to  pay  for.  But  a  specialty  given  for 
past  connection  can  be  enforced,  because  there  is  a  consideration,  viz.,  that  im- 
ported by  the  seal,  and  as  regards  the  immorality,  the  injury  having  been  al- 
ready done,  there  is  no  principle  of  law  that  forbids  its  being  remedied,  and 
it  has  been  latterly  held  that  even  if  the  connection  be  continued  after  the 
giving  of  the  bond,  that  will  not  vitiate  the  instrument,  if  such  continuance 
did  not  enter  into  the  transaction :  Hall  v.  Palmer,  3  Hare,  532  ;  and  in  a  trial 
at  Nisi  Prius,  Best,  C.  J.,  left  it  to  the  jury  to  determine,  whether  at  the  time 
of  giving  such  bond,  the  continuance  of  the  connection  formed  part  of  the 
transaction,  for  if  it  did,  the  obligee  could  not  recover ;  if  it  did  not,  there 
was  nothing  in  the  transaction  prohibited  by  the  law :  Friend  v.  Harrison,  2 
C.  &P.  (12E.  C.L.  R.)  584. 

There  is  a  class  of  cases  which  determine  that  promises  in  consideration  of 
a  forbearance  or  compromise  of  a  prosecution  for  bastardy,  can  be  enforced  : 
Haven  v.  Hobbs,  1  Vt.  238  ;  Halcomb  v.  Stimpson,  8  lb.  141 ;  Robinson  r. 
Crenshaw,  2  Stew.  &  P.  276;  Maurer  v.  Mitchell,  9  W.  &S.  71;  and  these 
cases  proceed  upon  the  ground  of  the  prosecutions  being  rather  civil  in  llieii 
character. — K. 

227 


209  ILLEGAL  CONTRACTS.        [lECT.  V. 

his  labour  against  the  j^ublisher  who  employed  him. 

"I  have  no  hesitation,"  said  Best^  *C.  J.,  "in 
L  J  declaring  that  no  person  who  has  contributed 
his  assistance  to  the  publication  of  such  a  work  can  re- 
cover in  a  Court  of  Justice  any  compensation  for  the 
labour  so  bestowed.  The  person  who  lends  himself  to 
the  violation  of  the  public  morals  and  laws  of  the 
country,  shall  not  have  the  assistance  of  those  laws  to 
carry  into  execution  such  a  purpose.  It  would  be 
strange  if  a  man  could  maintain  an  action  at  law  for 
doing  that  for  which  he  could  be  fined  and  imprisoned. 
Every  one  who  gives  his  aid  to  such  a  work,  though  as 
a  servant,  is  responsible  for  the  mischief  of  it"(^). 
Upon  these  and  similar  reasonings,  it  has  been  held, 
that  the  first  publisher  of  a  libellous  or  immoral  work 
cannot  maintain  an  action  against  any  person  for  pub- 
lishing a  pirated  edition  (e).  Nor  will  an  injunction  be 
granted  to  restrain  the  piracy  on  the  application  of  the 
author  or  publisher,  the  general  rule  of  Equity  having 
been  not  to  give  relief  of  this  kind  except  where  a 
Court  of  Law  gave  damages  (/).  And  where  the  plain- 
tiff, a  printer,  having  agreed  to  print  for  tlie  defendant 
a  work  which  was  to  contain  a  dedication  to  be  thereafter 
sent  him,  printed  the  work  and  also  the  dedication,  but 
on  the  latter  being  returned  to  him  revised,  discovered 
for  the  first  time  that  it  contained  libellous  matter, 
whereupon  he  refused  to  continue  the  printing  of  it : 

it  was  held,  *that  the  dedication  being  libellous, 
L  J  the  plaintiff  was  justified  in  refusing  to  publish 
it,  and  was  entitled  to  recover  the  expense  of  printing 
the  body  of  the  work  from  the  defendant,  who  had  re- 
fused to  accept  or  pay  for  the  work  without  the  dedica- 

(d)  Poplett  V.  Stockdale,  E.  &  M.  337. 

(e)  Stockdale  v.  Onwhyn,  5  B.  &  C.  (11  E.  C.  L.  R.)  173. 
(/)  Walcot  V.  Walker,  7  Ves.  1. 

228 


LECT.  v.]  ILLEGAL  CONTRACTS.  211 

tion  {g).  And,  more  recently,  where  the  defendant 
contracted  to  let  rooms  to  the  plaintiff,  but  afterwards 
discovering  that  they  were  intended  to  be  used  for  the 
delivery  of  lectures  of  a  blasphemous  character,  refused 
to  allow  the  use  of  the  rooms :  it  was  held,  that  he  was 
justified  in  his  refusal,  as  the  contract  was  illegal,  and 
could  not  therefore  be  enforced  at  law  {h). 

A  large  proportion  of  the  examples  of  the  application 
of  this  rule  afforded  by  the  books  is,  where  illicit  co- 
habitation or  seduction  has  been  brought  forward  as  th<=» 
consideration  of  the  contract.  These,  if  intended  to  be 
future,  are  illegal  considerations  (i);^  if  already  past, 
they  are,  as  formerly  explained,  no  consideration  at 
all  ijc).  Even  the  supplying  lodgings  or  clothing  (Z), 
or  a  carriage  to  *a  prostitute  for  the  purpose  of  rn^oin-i 
enabling  her  to  carry  on  her  practices,  is 
illegal,  and  the  creditor  cannot  recover  the  price  (m). 

Again,  to  quote  the  words  of  Cockburn,  C.  J.,  in 
Harrington  v.  Victoria  Graving  Dock  Co.  {n) ,  "  when 
a  bribe  is  given,  or  a  promise  of  a  bribe  is  made,  to  a 
person  in  the  employ  of  another  by  some  one  who  has 
contracted,  or  is  about  to  contract,  with  the  employer, 
with  a  view  to  inducing  the  person  employed  to  act 
otherwise  than  with  loyalty  and  fidelity  to  his  employer, 

(^)  Clay  V.  Yates,  25  L.  J.  (Ex.)  237 ;  1  H.  &  N.  73. 

\h)  Cowan  V.  Milbourn,  L.  R.  2  Ex.  230 ;  36  L.  J.  (Ex.)  124. 

{i)  Walker  v.  Perkins,  3  Burr.  1568. 

{k)  Bridges  V.  Fisher,  23  L.  J.  (Q.  B.)  276;  3  E.  &  B.  (77  E.  C.  L.  R.)  642  ; 
Beaumont  r.  Reeve,  8  Q.  B.  (55  E.  C.  L.  R.)  483. 

{I)  Girardy  v.  Richardson,  1  Esp.  13;  Jennings  v.  Throgmorton,  R.  &  M. 
(21  E.  C.  L.  R.)  251 ;  Bowery  v.  Bennet,  1  Camp.  348.  See  Feret  v.  Hill,  23 
L.  J.  (C.  P.)  185  ;  15  C.  B.  (80  E.  C.  L.  R.)  207.  See  also  Smith  v.  White,  L. 
R.  1  Eq.  626 ;  35  L.  J.  (Ch.)  454;  Taylor  v.  Chester,  L.  R.  4  Q.  B.  309 ;  33  L. 
J.  (Q.  B.)  225. 

(m)  Pearce  v.  Brookes,  35  L.  J.  (Ex.)  134;  L.  R.  1  Ex.  213. 

(tj)  3  Q.  B.  D.  549,  551  ;  47  L.  J.  (Q.  B.)  594,  595.  See  also  Smith  t-.  Sorby, 
3  Q.  B.  D.  552,  n. 

^  Walker  v.  Gregory,  36  Ala.  ISO.— s. 

229 


212  ILLEGAL  CONTEACTS.        [lECT.  Y. 

the  agreement  is  a  corrupt  one,  and  is  not  enforceable  at 
law,  whatever  the  actual  effect  produced  on  the  mind  of 
the  person  bribed  may  be.  The  tendency  of  such  an 
agreement  as  this  must  be  to  bias  the  mind  of  tlie  agent 
or  other  person  employed,  and  to  lead  him  to  act  dis- 
loyally to  his  principal.  It  is  intended  by  the  party 
who  promises  the  bribe  to  have  that  effect,  and  the  other 
j)arty  knows  such  is  his  intention.  Such  a  bargain  is 
obviously  corrupt."  In  the  particular  case  from  which 
these  words  are  cited,  the  defendants  had  contracted  to 
pay  the  plaintiff  a  commission  for  superintending  re- 
joairs  to  be  executed  by  them  on  certain  ships  belonging 
to  the  Great  Eastern  Kailway  Company.  The  plaintiff", 
r*9i  '^1  ^^  ^^^^  ^^^^^  ^^  such  contract  being  *made,  was 
m  a  position  oi  trust  in  relation  to  the  railway 
company,  having  been  employed  by  them  as  an  engineer 
to  advise  them  as  to  the  repairs,  and  the  contract  be- 
tween defendants  and  plaintiff"  was  made  in  part  in  con- 
sideration of  a  promise  that  the  plaintiff"  would  use  his 
influence  with  the  railway  company  to  induce  them  to 
accept  the  defendants'  tender  for  the  repair  of  the  ships. 
The  jury  found  that  the  contract,  though  calculated  to 
bias  the  mind  of  the  plaintiff,  had  not,  in  fact,  done  so, 
and  that  he  had  not  in  consequence  thereof  given  less 
beneficial  advice  to  the  company  as  to  the  defendants' 
tender  than  he  would  otherwise  have  done.  But  the 
Court  held  that  the  plaintiff"  could  not  maintain  an 
action  for  commission  under  the  contract,  on  the  ground 
that,  even  although  the  plaintiff"  had  not  been  induced 
to  act  corruptly,  the  consideration  for  the  contract  was 
corrupt. 

Next,  with  regard  to  the  second  class — those,  namely, 

which  are  void  as  contravening  the  policy  of  the  law. 

It  might,  perhaps,  have  seemed  more  simple  to  have 

ranked  this  and  the  former  in  one  and  the  same  class, 

230   , 


LECT.  v.]  ILLEGAL   CONTRACTS.  213 

since  it  is  obvious,  that,  wherever  a  contract  has  an 
immoral  tendency,  there  it  is  opposed  to  the  policy  of 
the  law.  But  the  reason  for  dividing  them  into  two 
classes  is,  that  there  are  some  contracts  which  involve  no 
offence  against  the  laws  of  morality,  and  nevertheless 
are  opposed  to  policy ;  such,  for  instance,  as  contracts  in 
general  '^restraint  of  trade,  and  wdiich,  there-  ^^914-1 
fore,  are  arranged  in  a  class  by  themselves. 

There  seems  to  be  nothing  obviously  immoral  in  a 
man's  promising  or  covenanting  not  to  carry  on  his 
trade  within  the  limits  of  England.  Nevertheless,  such 
a  covenant  or  promise  has  been  held  totally  void.  This 
was  decided  so  long  ago  as  in  the  reign  of  Henry  V. ; 
in  the  Year  Book  of  the  2nd  year  of  which  reign,  fol. 
5,  pi.  26,  a  bond  restraining  a  w^eaver  from  exercising 
his  trade  was  held  void  :  and  Judge  Hull  flew  into  such 
a  passion  at  the  sight  of  it,  that  he  swore  on  the  bench, 
and  threatened  to  send  the  obligee  to  prison  till  he  had 
paid  a  fine  to  the  King ;  upon  which  Lord  3IacclesJield 
observes,  in  Mitchell  v.  Reynolds  (o),  "that  he  could 
not  but  approve  of  the  indignation  the  judge  expressed, 
though  not  his  manner  of  expressing  it."  Accordingly 
such  contracts  were  declared  to  be  void  in  that  case,  and 
have  ever  since  been  held  void  {p). 

"The  law,"  said  Best,  C.  J.,  in  Homer  v.  Ashford(5'), 
"  will  not  allow  or  permit  any  one  to  restrain  a  person 
from  doing  what  his  own  interest  and  the  public  welfare 
require  that  he  should  do.  Any  deed,  therefore,  by 
which  a  person  binds  himself  not  to  emj)loy  his  talents, 
his  industry,  or  his  ^capital  in  any  useful  p:;.-,.  ^-| 
undertaking  in  the  kingdom,  would  be  void. 

(0)1  P.  Wms.  181,  194;  1  Smith,  L.  C.  417,428,8th  ed. ;  Gunmakers' 
Company  v.  Fell,  Willes,  384. 

(p)  At  any  rate  until  quite  recently.     See  post.  p.  *223. 
(3)  3  Bing.  (11  E.  C.  L.  R.)  322,  326. 

231 


215  ILLEGAL   CONTRACTS. 

But  here  arises  a  distinction,  which  was  first  illus- 
trated by  Lord  3Iacclesfield,  in  the  celebrated  case  of 
Mitchell  V.  Keynolds,  before  mentioned,  which  has  ever 
since  been  upheld.    It  is,  that  though  a  contract  in  general 
restraint  of  trade  is  void,  one  in  partial  restraint  of 
trade  may  be  upheld ;  provided  the  restraint  be  reason- 
able, and  provided  the  contract  be  founded  upon  a  con- 
sideration.    "  It  may  often  happen,"  continued  Lord 
Wynford  (then  Chief  Justice  Best),  at  the  place  whicl^ 
I  have  just  cited,  "  that  individual  interest  and  general 
convenience  render  engagements  not  to  carry  on  trade 
or  act  in  a  profession  at  a  particular  place   proper." 
"  Contracts  for  the  partial  restraint  of  trade  are  up- 
held,"  said   the   Court   of    Exchequer   in    Mallan   v. 
May   (r),  "not  because  they  are  advantageous  to  the 
individual  with  whom  the  contract  is  made,  and  a  sacri- 
fice pro  tanto  of  the  rights  of  the  community,  but  be- 
cause it  is  for  the  benefit  of  the  public  at  large  that 
they  should  be  enforced.     Many  of  these  partial  re- 
straints on  trade  are  perfectly  consistent  with  public 
convenience  and  the  general  interest,  and  have  been 
supported :  such  is  the  case  of  the  disposing  of  a  shop 
in  a  particular  place,  with  a  contract  on  the  part  of  the 
vendor  not  to  carry  on  a  trade  in  the  same  place.     It  is 
r*91  n    ^^  ^effect  the  sale  of  a  good-will,  and  offers  an 
encouragement  to  trade,  by  allowing  a  party  to 
dispose  of  all  the  fruits  of  his  industry  (r^).     And  such 
is  the  class  of  cases  of  much  more  frequent  occurrence, 
and  to  which  this  present  case  belongs,  of  a  tradesman, 
manufacturer,  or  professional  man  taking  a  servant  or 
clerk  into  his  service,  with  a  contract  that  he  will  not 
carry  on  the  same  trade  or  profession  within  certain 

(r)  11  M.  &.  W.  563. 

(r^)  Prugnell  v.  Grosse,  Alleyn,  67  ;  Broad  v.  Jollyffe,  Cro.  Jac.  596  ;  Jelliott 
r  Broad,  Noy,  98. 

232 


LECT.  v.]         ILLEGAL  CONTRACTS.  216 

limits  (s).  In  such  a  case  the  public  derives  an  advan- 
tage in  the  unrestrained  choice  which  such  stipulation 
gives  to  the  employer  of  able  assistants,  and  the  secu- 
rity it  affords  that  the  master  will  not  withhold  from 
the  servant  instruction  in-  the  secrets  of  his  trade,  and 
the  communication  of  his  own  skill  and  experience, 
from  the  fear  of  his  afterwards  having  a  rival  in  the 
same  business."  But  it  must  always  be  borne  in  mind, 
"that  contracts  in  restraint  of  trade  are  ip  themselves, 
if  nothing  more  appears  to  show  them  reasonable,  bad 
in  the  eye  of  the  law  "  (ty. 

Examples  of  what  are  considered  partial  restraints 
of  trade  are  numerous  in  the  books ;  they  are  usually 
partial  in  respect  of  time,  as  not  to  exercise  it  for  a 
specified  period ;  or  in  respect  of  space,  as  not  to  trade 
within  a  given  district ;  and  *a  restraint  limited  (-^.9-17-1 
as  to  space  may  be  unlimited  as  to  time  and 
yet  good  (u).  In  Gale  v.  Heed  (x),  the  contract  was 
for  one  party  not  to  trade  with  a  certain  class  of  per- 
sons in  the  mode  specified,  provided  the  other  party 
traded  with  them  therein.  The  defendant  covenanted 
not  to  exercise  the  business  of  a  ropemaker  during  his 
life,  except  on  government  contracts,  and  to  employ  the 
plaintiffs  exclusively   to  make  all  the  cordage   which 

(s)  Chesraan  v.  Nainby,  2  Ld.  Raym.  1456 ;  2  Stra.  739. 

(t)  Tindal,  C.  J.,  Horner  v.  Graves,  7  Bing.  (20  E.  C.  L.  E.)  744.  But  see 
Tallis  V.  Tallis,  22  L.  J.  (Q.  B.)  185. 

(w)  Catt  V.  Tourle,  L.  R.  4  Ch.  654,  33  L.  J,  (Cli.)  565 ;  Elves  t;.  Crofts,  10 
C.  B.  (70  E.  C.  L.  R.)  241,  cited  post,  p.  *223. 

(x)  8  East,  80. 

1  Warner  v.  Jones,  51  Me.  146 ;  Clark  v.  Crosby,  37  Vt.  188 ;  Hard  v. 
Seeley,  47  Barb.  428  ;  McClurg's  Appeal,  58  Pa.  St.  51 ;  Jenkins  v.  Temples, 
39  Ga.  655 ;  Treat  v.  Snoniger  Melodeon  Co.,  35  Conn.  543 ;  Gillis  v.  Hall,  2 
Brewst  342;  Crawford  v.  Wick,  18  Ohio  St.  190;  Guerand  r.  Dandelet,  32 
Md.  561;  Warfield  v.  Booth,  33  lb.  63;  Dean  v.  Emerson,  102  Mass.  480; 
More  V.  Bonnet,  40  Cal.  251;  Perkins  v.  Clay,  54  N  H.  518;  Nougland  v. 
Segur,  38  N.  J.  230;  Dwight  v.  Hamilton,  113  Mass.  175;  Brown  v.  Rounsavell, 
78  111.  589;  Roller  v.  Ott,  14  Kan.  609;  Peltz  v.  Eichelle,  62  Mo.  171.— s. 

233 


217  ILLEGAL  CONTRACTS.        [lECT.  V. 

Bliould  be   ordered   of   him   by  bis   connexion.     The 
plaintiffs  were  to  allow  bim  2s.  per  cwt.  on  the  cord- 
age made  by  tbem  for  such  of  bis  connexion  wbose 
debts  sbould  turn  out  to  be  good,  but  were  not  to  be 
compelled  to  furnish  goods  to  any  whom  they  were  not 
willing  to  trust.     The  Court  considered  that  the  de- 
fendant was  not   prevented   from   supplying  those  of 
bis  connexion  whom  the  plaintiffs  rejected,  and  conse- 
quently that  the  restraint  to  follow  bis  trade  was  par- 
tial only.     Such  restraints  were  upheld  in  the  case  of 
Chesman  v.  Nainby,  decided  in  the  House  of  Lords 
upon  writ  of  error   {y),  in  which  the  agreement  was, 
not  to  carry  on  the  trade  of  a  linendraper  within  half 
a  mile  of  the  place  where  the  party  was  to  serve  as 
assistant;  in  that  of  Bunn  v,  Guy  {z),  where  tbe  agree- 
|-^o-|  o-|    ment  was,  tbat  one  attorney  *in  London  selling 
bis  business  to  others  should  not  practice  as  an 
attorney  within  London,  or  150  miles  thereof;  and  in 
that  of  Proctor  v.  Sargent  (a),  where  the  servant  of  a 
cowkeeper  in  London  engaged  not  to  carry  on  tbe  same 
trade  as  his  master  within  five  miles  for  twenty-four 
months  after  the  determination  of  his  service.     Indeed 
nothing,  as  you  must  be  well  aware,  can  be  more  com- 
mon upon   a  dissolution  of  partnership,  than  for  tbe 
retiring  partner  to  covenant  that  he  will  not  set  up  the 
same  trade  within  a  certain  distance  to  the  injury  of 
tbe  continuing  partner.     But  tbese  restraints  must,  in 
order  to  be  upheld,  be   reasonable ;  that  is,   a  greater 
restriction  must  not  be  wantonly  imposed  than  can  be 
necessary  for  the  protection  intended. 

In  Horner  v.  Graves  {b),  100  miles  from  the  place 

{y)  2  Str.  739 ;  3  Bro.  P.  C.  349. 

(z)  4  East,  190;  Whittaker  v.  Howe,  3  Beav.  383;  Dendy  v.  Henderson,  24 
L.  J.  (Ex.)  324 ;  NichoUs  v.  Stretton,  10  Q.  B.  (69  E.  C.  L.  R.)  346. 

(a)  2  M.  &  Gr.  (40  E.  C.  L.  K.)  20 ;  Benwell  v.  Inns,  24  L.  J.  (Ch.)  G63. 
(6)  7  Bing.  (20  E.  C.  L.  R.)  735. 
234 


LECT.  v.]  ILLEGAL   CONTKACTS.  218 

where  a  dentist  carried  on  business  was  considered  an 
unreasonable  space  from  which  to  exclude  an  assistant 
and  pupil  from  practising  the  same  profession  after  his 
service  was  determined  and  his  instruction  completed. 
"  We  do  not  see,"  said  Tindal,  C.  J.,  in  delivering  the 
judgment  of  the  Court  of  Common  Pleas,  "  how  a  better 
test  can  be  ajDplied  to  the  question,  whether  reasonable 
or  not,  than  by  considering  whether  the  restraint 
is  such  only  as  to  afford  a  fair  protection  to  the 
^interest  of  the  j)arty  in  favour  of  whom  it  is  p-:9iqi 
given,  and  not  so  large  as  to  interfere  with  the 
interest  of  the  public.  Whatever  restraint  is  larger 
than  the  necessary  protection  of  the  party  can  be  of  no 
benefit  to  either,  it  can  only  be  oppressive ;  and,  if 
oppressive,  it  is  in  the  eye  of  the  law,  unreasonable. 
Whatever  is  injurious  to  the  interests  of  the  public,  is 
void,  on  the  grounds  of  public  policy.  In  the  case 
above  referred  to  (Mitchell  v.  Reynolds)  (c)  Lord  Chief 
Justice  Parker  says,  *  A  restraint  to  carry  on  a  trade 
throughout  the  kingdom  must  be  void ;  a  restraint  to 
carry  it  on  in  a  particular  place  is  good ;'  which  are 
rather  instances  or  examples  than  limits  of  the  apj)lica- 
tion  of  the  rule,  which  can  only  be  at  last  what  is  a 
reasonable  restraint  with  reference  to  the  particular 
case.  In  that  case  the  plaintiflf  had  assigned  to  the  de- 
fendant the  lease  of  a  house  in  the  parish  of  A.  for  five 
years,  and  the  defendant  entered  into  a  bond  conditioned 
that  he  would  not  exercise  the  trade  of  a  baker  within 
that  parish  during  that  term ;  and  the  restraint  was 
held  good,  because  not  unreasonable  either  as  to  the 
time  or  distance,  and  not  larger  than  might  be  neces- 
sary for  the  protection  of  the  plaintiff  in  his  established 
trade.     No  certain  precise  boundary  can  be  laid  down 

(c)  1  p.  Wms.  181,  1  Smith,  L.  C.  417,  8th  ed.    This  case,  with  the  note 
thereon,  should  be  carefully  studied. 

235 


219  ILLEGAL   CONTRACTS.  [lECT.  V. 

within  which  the  restraint  would  be  reasonable,  and  be- 
r*99m  y^"^  which,  excessive.  In  Davis  i  *Mason  (d), 
L  -^  where  a  surgeon  had  restrained  himself  not  to 
practise  within  ten  miles  of  the  plaintiff's  residence,  the 
restraint  was  held  reasonable.  In  one  of  the  cases  re- 
ferred to  by  the  plaintiff,  150  miles  was  considered  as 
not  an  unreasonable  restraint,  where  an  attorney  had 
bought  the  business  of  another  who  had  retired  from 
the  profession.  But  it  is  obvious  that  the  profession  of 
an  attorney  requires  a  limit  of  a  much  larger  range,  as 
so  much  may  be  carried  on  by  correspondence,  or  by 
agents.  And  unless  the  case  was  such  that  the  restraint 
was  plainly  and  obviously  unnecessary,  the  Court  would 
not  feel  itself  justified  in  interfering.  It  is  to  be  remem- 
bered, however,  that  contracts  in  restraint  of  trade  are 
in  themselves,  if  nothing  more  appears  to  show  them 
reasonable,  bad  in  the  eye  of  the  law;  and  upon  the 
bare  inspection  of  this  deed,  it  must  strike  the  mind  of 
every  man  that  a  circle  round  York  traced  with  the 
distance  of  one  hundred  miles  incloses  a  much  larger 
space  than  can  be  necessary  for  the  plaintiff's  protec- 
tion." A  fortiori,  where  the  plaintiflf,  a  coal  merchant 
in  London,  had  taken  the  defendant  into  his  service  as 
town  traveller  and  collecting  clerk,  and  the  defendant 
agreed  that  he  would  not  within  two  years  after  leaving 
the  plaintiff's  service,  solicit  or  sell  to  any  customer  of 
r^::99i-i  the  plaintiff,  and  would  not  follow  or  *be  em- 
ployed  in  the  business  of  a  coal  merchant  for 
nine  months  after  he  should  have  left  the  employment 
of  the  plaintiff,  the  contract  was  decided  to  be  void,  as 
a  restraint  of  trade  unlimited  in  point  of  space  {e).  "  I 
cannot  express,"  said  Parke,  B.,  in  this  case,  *'  the  rule 

(d)  5  T.  R.  118. 

(e)  "Ward  v.  Byrne,  5  M.  &  W.  548,  561 ;  and  see  Allsopp  r.  Wheatcroft,  I* 
B.  15  Eq.  59 ;  42  L.  J.  (Ch.)  12. 

236 


LECT.  v.]  ILLEGAL   COJ^^TRACTS.  221 

on  this  subject  better  than  has  been  done  by  Tindal, 
C.  J.,  in  giving  the  judgment  of  the  Court  of  Exchequer 
Chamber  in  Hitchcock  v.  Coker  (/),  where  he  says, 
'  We  agree  in  the  general  principle  adopted  by  the 
Court  of  Queen's  Bench,  that,  where  the  restraint  of  a 
party  from  carrying  on  a  trade  is  larger  and  wider  than 
the  protection  of  the  party  with  whom  the  contract  is 
made  can  possibly  require,  such  restraint  must  be  con- 
sidered as  unreasonable  in  law,  and  the  contract  that 
would  enforce  it  must  be  therefore  void.'  Now  a  re- 
straint prohibiting  a  party  from  carrying  on  trade 
within  certain  limits  ,of  space  would  be  good,  and  a  con- 
tract entered  into  for  the  purpose  of  enforcing  such  an 
agreement  as  that  would  be  valid ;  and  the  limit  of  the 
space  is  that  which,  according  to  the  trade  he  carries  on, 
is  necessary  for  the  protection  of  the  party  with  whom 
the  contract  is  made."  The  cases  upon  tiiis  branch  of 
the  subject  are  reviewed  by  the  Court  of  Exchequer  in 
the  great  case  of  Mallan  v.  May,  before  mentioned ;  and 
it  may  be  '""convenient  to  the  student  to  subjoin  ^,  ^^^^ 
the  brief  observations  made  upon  them  by  that  ^  -^ 
Court  in  giving  judgment  (g)  :  — 

"  Applying  this  rule  and  referring  to  the  analogous 
authorities,  it  appears  to  us,  that,  for  such  a  profession 
as  that  of  a  dentist,  the  limit  of  London  is  not  too 
large.  In  Davis  v.  Mason  (A),  Thetford  and  ten  miles 
round,  in  Hayward  v.  Young  {i),  twenty  miles  round  a 
place,  were  held  reasonable  limits  in  the  case  of  a  sur- 
geon ;  in  that  of  an  attorney,  London  and  one  hundred 
and  fifty  miles  round,  in   Bunn  v.   Guy   (k) ;  and   in 

(/)  6  A.  &  E.  (33  E.  C.  L.  R.)  453. 
ig)  11  M.  &  W.  667. 
{h)  5  T.  R.  118. 

(i)  2  Chit.  407 ;  Atkyns  v.  Kinnier,  4  Ex.  776 ;  Sainter  v.  Ferguson,  7  C.  B. 
(62  E.  C.  L.  E.)  716. 
(k)  4  East,  190. 

237 


222  ILLEGAL   COXTEACTS.  [lECT.  V. 

Proctor  V.  Sargent  (Z),  five  miles  from  Northampton 
Square,  in  the  county  of  Middlesex,  was  held  reason- 
able in  the  case  of  a  milkman.  And  it  makes  no 
difference,  in  our  opinion,  that  it  appears  on  the  face  of 
this  record  that  London  contains  a  million  of  inhabi- 
tants. We  doubt,  indeed,  whether  the  comparative 
populousness  of  particular  districts  ought  to  enter  into 
consideration  at  all ;  if  it  did,  it  would  be  difficult  to 
exclude  others,  such  as  the  number  of  men  of  the  same 
profession,  the  habits  of  the  people  in  that  neighbour- 
hood, and  other  matters  of  a  fluctuating  and  uncertain 
character,  which  would  produce  great  difficulty  and 
embarrassment  in  determining  such  question."  Yet 
P^oQo-i  the  *Court  will  take  into  consideration  the  cir- 
cumstances at  the  time  of  the  execution  of  the 
bond  and  the  nature  of  the  business,  the  goodwill  of 
which  was  sold  (m). 

Upon  this  principle  a  covenant  not  at  any  time  to 
carry  on  the  business  of  a  butcher  within  five  miles  of 
the  place  where  the  covenantor  carried  it  on,  before  his 
sale  of  the  business  to  the  covenantee,  has  been  sup- 
ported as  not  unreasonable  either  in  respect  of  time  or 
distance  (n).  And  in  Tallis  v.  Tallis  (o),  the  Court  of 
Queen's  Bench  declared  that  any  covenant  is  valid  un- 
less it  plainly  appear  that  a  restriction  is  imposed  by 
it  beyond  what  the  interest  of  the  covenantee  re- 
quires. 

The  proposition  that  a  covenant  or  promise  not  to 
carry  on  a  trade  within  the  limits  of  England  is  totally 

(Z)  2  M.  &  Gr.  (40  E.  C.  L.  E.)  20 ;  Pemberton  v.  Vaughan,  10  Q.  B.  (59  E.  C. 
L.  R.)  87. 

(m)  Avery  v.  Langford,  23  L.  J.  (Ch.)  837  ;  Harms  v.  Parsons,  32  Beav. 
328;  32  L.  J.  (Ch.)  247. 

(n)  Elves  v.  Crofts,  10  C.  B.  (70  E.  C.  L.  R.)  241. 

(o)  1  E.  &  B.  (72  E.  C.  L.  R.)  391 ;  S.  C,  22  L.  J.  (Q.  B.)  185.    See  Mum- 
ford  V.  Gething,  7  C.  B.  N.  S.  (97  E.  C.  L.  R.)  305;  29  L.  J.  (C.  P.)  105. 
238 


LECT.  Y.]  ILLEGAL   CONTRACTS.  223 

void  (p),  seems  somewhat  qualified  in  the  recent  case 
of  Leather  Cloth   Company  v.  Lorsont  (q).     There  a 
company  was  formed  for  the  purchase  and  working  of 
certain  patents  and  processes  for   the  manufacture  of 
American  leather  cloth  ;  and  the  agreement  for  the  pur- 
chase contained  a  provision,  that  the  vendors  "  will  not 
^directly  or  indirectly  carry  on,  nor  will  they,    riitc)c,A-i 
to  the  best  of  their  power,  allow  to  be  carried 
on  by  others,  in  any  part  of  Europe,  any  company  or 
manufactory  having  for  its  object  the  manufacture  or 
sale  of  productions  now  manufactured  in  the  business  or 
manufactory "   (of  the  vendors),   "  and  will  not  com- 
municate to  any  person  or  persons  the  means  or  pro- 
cesses of  such  manufacture,  so  as  in  any  way  to  inter- 
fere with  the  exclusive  enjoyment  by  the  purchasing 
company  of  the  benefits  hereby  agreed  to  be  purchased." 
James,  V.  C,  held,  that  the  restriction  contained  in 
this  clause  was  not  greater,  having  regard  to  the  sub- 
ject-matter of  the  contract,  than  was  necessary  for  the 
protection  of  the  purchasers.     His  Honour,  however, 
seems  to  have  to  some  extent  proceeded  on  the  ground 
that  the  case  much  more  resembled  "  the  sale  of  a  secret, 
which  has  been  held  to  be  perfectly  good,  with  a  stipu- 
lation unlimited  as  to  time  and  place  as  to  communi- 
cating the  secret,  or  dealing  with  it  so  as  to  interfere 
with  the  j^urchaser.     It  is  settled  by   authority  that  a 
man  may  bind  himself  not  to  communicate  that  process 
to  anybody  else  anywhere,  under  any  circumstances,  in 
any  part  of  the  world"  (r).     But  still  more  recently  it 

(p)  Ante,  p.  *214. 

iq)  L.  E.  9  Eq.  345  ;  39  L.  J.  (Ch.)  86. 

(?■)  Leather  Cloth  Co.  v.  Lorsont,  L.  R.  9  Eq.  345,  354 ;  39  L.  J.  (Ch.)  86, 
90.  "  Although  the  policy  of  the  law  will  not  permit  a  general  restraint  of 
trade,  yet  a  trader  may  sell  a  secret  of  business,  and  restrain  himself  generally 
from  using  tliat  secret."  Per  Sir  J.  Leach,  V.  C,  in  Bryson  v.  Whitehead,  1 
Sim.  &  S.  74,  77. 

239 


224  ILLEGAL  CONTRACTS.        [lECT.  V. 

r*99--i  l^as  been  "^'held  that  a  contract,  unliiiiited  in 
point  of  space  whereby  the  defendant  agreed 
with  the  plaintiffs  not  to  establish  himself  in  the  cham- 
pagne trade,  was  not  under  the  circumstances  of 
that  trade  unreasonable  and  might  be  enforced  (s). 

It  may  be  mentioned  here  that  where  one  covenants 
with  another  not  to  carry  on  business  within  a  given 
distance  of  that  other's  house,  this  distance  is  to  be 
calculated,  popularly  speaking,  "as  the  crow  flies," 
more  accurately,  by  drawing  a  circle  on  a  map,  the 
radius  of  which  is  the  given  distance  measured  on  the 
map.  And  where  the  question  is  whether  the  covenant 
is  broken  by  the  too  great  proximity  of  one  house  to 
another,  then,  in  measuring  the  distance,  it  should  be 
taken  from  the  nearest  point  of  the  one  house  to  the 
nearest  point  of  the  other,  without  regard  to  where  the 
doors  are  situated  (t). 

Further,  contracts  in  restraint  of  trade  must,  in  order 
to  be  good,  be  founded  on  a  consideration,  even  although 
they  be  made  by  deed.  "  Where  one  agrees,"  said 
Lord  Lyndhurst  in  a  remarkable  case,  which  is  well 
r*99fi1  worthy  of  attention  {u) ,  "  with  ^another  to  employ 
him,  and  the  latter  agrees  not  to  work  for  any 
third  person,  such  agreement  is  a  partial  restraint  of 
trade,  and  must  be  supported  by  adequate  considera- 
tion." Thus,  in  the  case  of  Hutton  v.  Parker  {x),  it 
was  held  most  clearly  by  the  Court  of  Queen's  Bench, 
that  in  an  action  on  a  bond  given  by  the  defendant  not 
to  enter  into  the  service  of  any  other  than  the  plain- 

(s)  Kousillon  v.  Eousillon,  14  Ch.  Div.  351 ;  49  L.  J.  (Cli.)  338. 

\t)  Mouflet  V.  Cole,  L.  E.  8  Ex.  32  (Ex.  Ch.),  S.  C.  42  L.  J.  (Ex.)  8,  affirm- 
ing L.  R.  7  Ex.  70 ;  S.  C.  41  L.  J.  (Ex.)  28;  Duignan  v.  Walker,  Johns.  446; 
28  L.  J.  (Ch.)  867. 

(u)  Young  V.  Timmins,  1  C.  &  J.  339.  See  also  Collins  v.  Locke,  4  App. 
Gas.  674;  48  L.  J.  (P.  C.)  68. 

(z)  7  Dowl.  739. 

240 


LECT.  v.]  ILLEGAL   CONTRACTS.  226 

tiff  within  ten  miles  of  the  town  of  Sheffield,  some  con- 
sideration must  be  shown  on  the  declaration,  in  order  to 
make  it  good ;  and  the  Court  refused  to  presume  one. 
But  where  an  artisan  agreed  with  manufacturers  to 
serve  for  seven  years,  and  not  work  for  any  other  with- 
out leave;  tliat  in  times  of  depression  of  trade  he 
should  be  paid  j^art  only  of  his  wages,  but  if  ill, 
another  was  to  be  employed  in  his  room  ;  and  that 
they  should  pay  him  wages  and  house  rent,  but  be  at 
liberty  to  dismiss  him  on  a  month's  notice ;  the  Court, 
thinking  that  the  manufacturers  were  bound  to  employ 
him  for  seven  years,  subject  to  their  power  of  dismissal, 
held,  that  there  was  a  good  consideration  for  the  arti- 
san's promise  to  serve  them  exclusively  (2/).-'^ 

iy)  Pilkington  v.  Scott,  15  M.  &  W.  657 ;  Sainter  v.  Ferguson,  7  C.  B.  (62 
E.  C.  L.  R.)  716.    See  1  Smith,  L.  C.  435-437,  8th  ed. 

'  See  the  note  to  Mitchell  v.  Reynolds,  in  1  Smith's  L.  C.  736.  In  this 
country,  the  general  principle  that  contracts  in  restraint  of  trade,  so  far  as 
they  may  prevent  the  exercise  of  a  particular  calling,  are  void,  has  been  fre- 
quently recognized  and  enforced,  as,  for  example,  a  contract  never  to  be  en- 
gaged in  the  business  of  founding  iron:  Alger  v.  Thatcher,  19  Pick.  51; 
manufacturing  chocolate  :  Yickery  v.  Welch,  lb.  523 ;  wool-carding :  Pyke  v. 
Thomas,  4  Bibb,  486,  and  the  like ;  while  the  exception  has  been  equally 
established  of  sanctioning  such  contracts  where  the  restraint  applies  only  to  a 
particular  locality :  Pierce  v.  Fuller,  8  Mass.  223 ;  Pierce  v.  Woodward,  6 
Pick.  206.;  Nobles  v.  Bates,  7  Cow.  307 ;  Palmer  v.  Graham,  1  Parsons'  Eq. 
476.  It  is  stated  in  the  text  that  the  later  English  cases  show  an  unwilling- 
ness to  enter  into  the  question  of  adequacy  of  consideration,  and  a  strong 
in.stance  of  this  may  be  seen  in  the  very  recent  case  of  Atkyns  v.  Kinnier, 
4  Exch.  776,  where  the  defendant  bound  himself  in  the  sum  of  £1000,  as 
liquidated  damages,  not  to  practice  as  a  physician  within  two  miles  and  a  half 
of  a  certain  place.  He  did  practice  a  few  feet  within  that  distance,  measur- 
ing by  a  less  frequented  road  than  the  usual  thoroughfare,  though  by  the 
latter  he  was  beyond  that  distance,  and  there  was  no  evidence  that  the  plain- 
tiff had  sustained  any  damage  from  his  having  done  so.  The  jury  having, 
under  the  direction  of  the  Court,  found  a  verdict  of  £1000,  the  Court  of  Ex- 
chequer discharged  a  rule  to  reduce  the  damages  to  a  shilling,  and  held  that 
the  defendant  must  abide  by  the  contract  he  had  made.  But  in  New  York, 
it  has  been  held  that,  primd  facie,  the  law  presumes  even  limited  restraints  on 
trade  to  be  void,  and  they  only  will  be  upheld  upon  sufficient  proof  of  their  rea- 
sonableness, both  as  to  consideration  and  usefulness :  Chapel  v.  Brockway,  21 
Wend.  158 ;  Ross  v.  Sadgbeer,  lb.  166.     In  the  latter  case,  to  a  declaration  on 

16  241 


22t)  ILLEGAL  CONTEACTS.         [lECT.  V. 

It  was  at  one  time  tliou2;ht  that  the  Courts  wouki 
enter  into  the  question  of  the  adequacy  of  this  con- 
sideration, and  would  hold  the  contract  yoid  if  the  con- 
r*99r--|  sideration  were  inadequate.  However,  ^'it  has 
been  decided  in  the  Exchequer  Chamber,  after 
great  consideration,  that  the  question  of  adequacy  or 
inadequacy  cannot  be  entertained,  but  that  the  parties 
must  judge  of  that  for  themselves  {z) ;  a  doctrine  you 
may  remember  my  citing  as  a  strong  instance  of  the 
un\villingness  of  the  courts  to  enter  into  the  question  of 
the  adequacy  of  consideration  at  all  (a).  The  reason 
of  this  last  rule  is  very  succinctly  expressed  by  Alder  son, 
B.,  in  Pilkington  -y.  Scott,  above  referred  to:  "Before 
the  decision  in  Hitchcock  v.  Coker,"  he  says,  "  a  notion 

(2)  Hitchcock  V.  Coker,  6  A.  &  E.  (33  E.  C.  L.  K.)  438 ;  .Ircher  v.  Marsh, 
lb.  966 ;  Price  v.  Green,  13  M.  &  W.  698 ;  per  Parke,  B. 

(a)  Ante,  p.  *176,  et  seq. 


a  bond  conditioned  that  the  defendant  shonld  not  manufacture  pearl  ash  for 
ten  years,  nor  within  forty  miles  of  a  certain  place,  a  general  demurrer  was 
sustained  by  the  Court,  on  the  ground  that  the  consideration  imported  by  the 
seal  did  not  afford  a  presumption  of  such  circumstances  and  reasons  as  were 
requisite  to  uphold  such  a  contract.  Prior  and  subsequent  decisions  in  that 
State,  haye  not,  however,  observed  such  a  rule,  and  an  agreement  not  to 
practice  as  a  physician  within  six  miles  or  pay  $500  for  every  month  of  such 
practice :  Smith  v.  Smith,  4  Wend.  468  ;  and  an  agreement  not  to  set  up  a 
rival  newspaper,  or  pay  $3000 :  Dakin  v.  Williams,  17  Wend.  447 ;  Williams 
V.  Dakin,  22  lb.  201,  were  respectively  enforced,  and  the  sums  named  held  to 
be  liquidated  damages,  and  not  a  penalty. — r. 

A  contract  in  general  restraint  of  trade  is  void ;  but  if  in  partial  restraint 
of  trade  only,  it  may  be  supjiorted,  provided  the  restraint  be  reasonable,  and 
the  contract  be  founded  on  consideration:  Holmes  v.  Martin,  10  Ga.  503; 
Bowser  v.  Bliss,  7  Blackf.  344  ;  Butler  r.  Burleson,  16  Vt.  17();  Noah  v.  Webb, 
1  Edw.  Ch.  604 ;  Alger  v.  Thacher,  19  Pick.  51.  An  agreement  between  two 
persons  for  the  manufacture  and  sale  of  a  certain  patented  article,  which  pro- 
vides for  the  continuance  of  the  manufacture  by  one  of  them,  and  that  the 
other  after  a  certain  time  shall  abstain  therefrom,  is  not  an  agreement  in 
restraint  of  trade:  Kinsman  v.  Parkhurst,  18  How.  289 ;  and  see  Whitney  r. 
Slayton,  40  Me.  224 ;  Van  ilarter  v.  Babcock,  23  Barb.  633 ;  Alcock  v.  Gib- 
berton,  5  Duer,  76  ;  Heichew  v.  Hamilton,  3  Iowa,  596 ;  Beard  v.  Dennis,  6 
Ind.  200;  California  Steam  Co.  v.  Wright,  6  Cal,  258;  Duffy  v.  Shockey,  11 
Ind.  70.— s. 
242 


LECT.  v.]  ILLEGAL   CONTRACTS.  22T 

prevailed  that  the  consideration  must  be  adequate  to 
the  restraint ;  that  was,  in  truth,  the  law  making  the 
bargain,  instead  of  leaving  the  parties  to  make  it,  and 
seeing  only  that  it  is  a  reasonable  and  proper  bargain." 

Altliough  the  examples  here  given,  and  indeed  by  far 
the  greater  number  of  instances  of  contracts  in  restraint 
of  trade,  have  been  instances  of  restraint  in  time  or 
place,  the  restraint  which  the  law  forbids  within  the 
limits  before  mentioned,  is  not  confined  to  restraints  in 
time  or  place.  Thus,  in  one  of  the  cases  on  the  subject, 
a  covenant  by  a  licensee  of  a  patent  for  a  term  of  years 
not  to  make  or  vend  during  the  residue  of  the  term,  any 
machines  for  effectuating  the  same  thing  as  the  patent 
was  obtained  for,  without  having  the  '^patented  p^.^-,f.Q-, 
invention  applied  to  those  machines,  was  con-  '-  '^  -' 
sidered,  and  held  not  void  {b). 

Another  example  of  contracts,  illegal  because  in  con- 
travention of  the  policy  of  the  law,  is  afforded  by  those 
cases  in  which  contracts  in  general  restraint  of  marriage 
have  been  held  void  (c).  Thus,  in  Lowe  v.  Peers  (d), 
a  defendant  entered  into  the  following  covenant : — "  I 
do  hereby  promise  Mrs.  Catherine  Lowe  that  I  will  not 
marry  any  person  besides  herself.  If  I  do,  I  agree  to 
pay  her  £1000  within  three  months  after  I  shall  marry 
anybody  else."  The  Court  of  King's  Bench  held  this 
contract  void,  remarking,  "  that  it  was  not  a  promise  to 
marry  her,  but  not  to  marry  any  one  else,  and  yet  she 
was  under  no  obligation  to  marry  him."  This  case  was 
affirmed  in  error  (e). 

(6)  Jones  v.  Lees,  26  L.  J.  (Ex.)  9 ;  1  H.  &  N.  189,  See  Hilton  v.  Eckersley, 
24  L.  J.  (Q.  B.)  353,  25  L.  J.  (Q.  B.)  199,  in  Ex.  Ch. ;  6  E.  &  B.  (88  E.  C.  L 
E.)  47. 

(c)  See  Newton  v.  Marsden,  31  L.  J.  (Ch.)  690 ;  Eobinson  v.  Omraaney,  21 
Ch.  Div.  780;  23  lb.  285;  51  L.  J.  (Ch.)  894;  52  lb.  440. 

(d)  4  Burr.  2225. 

(e)  4  Burr.  2234. 

243 


228  ILLEGAL  CONTKACTS.         [LECT.  V. 

So,  where  a  lady  gave   a  bond  conditioned  not  to 
marry,  the  Court  of  Chancery  ordered  it  to  be  delivered 

up(/)- 

On  the  subject  of  marriage  I  may  further  mention, 

that  a  deed  tending  to  the  future  separation  of  husband 
and  wife  is  void  on  grounds  of  public  policy  {g)  ; 
although  a  deed  providing  a  fund  for  the  ''lady's 
*-  -^  support  on  tlie  occasion  of  an  immediate  sepa- 
ration is  not  so  (A).  And  the  Chancery  Division  will 
exercise  its  jurisdiction  in  giving  effect  to  arrangements 
of  property  contained  in  articles  of  separation,  such 
separation  having  previously  taken  place  (-i),  and  will 
restrain  the  husband  from  doing  any  act  contrary  to  his 
covenant  in  such  articles  not  to  molest  his  wife  {k).  And 
even  where  the  parties,  after  executing  a  lawful  deed  of 
separation,  have  been  reconciled  and  have  cohabited,  the 
deed  is  not  necessarily  annulled  thereby  (/) ;  but  the 
performance  of  covenants  therein  will  be  comj^elled  if 
it  appear  that  such  reconciliation  was  not  intended  to 
annul  them  (m).  The  distinction  between  the  two  cases 
of  future  and  existing  separation  is  obvious.  The  deed, 
in  the  former  case,  contemplates  and  facilitates  that 
which  the  law  considers  an  evil — namely,  the  separation 
of  husband  and  wife ;  in  the  latter  case,  the  evil  is  in- 
evitable, and  the  effect  of  the  deed  is  but  to  save  the 
wife  from  destitution. 


(/)  Baker  v.  White,  2  Vern.  215. 

Ig)  Hindley  v.  Marquis  of  Westmeath,  6  B.  &  C.  (13  E.  C.  L.  K.)  200. 

{h)  Jee  V.  Thurlow,  2  B  &  C.  (9  E.  C.  L.  E.)  547 ;  Jones  v.  Waite,  in  Dom. 
Proc.  4  M.  &  Gr.  (43  E.  C.  L.  E.)  1104. 

(i)  Wilson  V.  Wilson,  1  H.  L.  Gas.  538  ;  Gibbs  v.  Harding,  L.  E.  8  Eq.  490, 
5  Gh.  336  ;  S.  G.  38  L.  J.  (Ch.)  604,  39  lb.  374;  Besant  v.  Wood,  12  Ch.  Div. 
605. 

ik)  Sanders  v.  Eodway,  22  L.  J.  (Ch.)  230. 

{I)  Wilson  V.  Mushett,  3  B.  &  Ad.  (23  E.  C.  L.  E.)  743;  Eandle  v.  Gould, 
27  L.  J.  (Q.  B.)  57 ;  8  E.  &  B.  (92  E.  C.  L.  E.)  457. 

(m)  Webster  v.  Webster,  22  L.  J.  (Ch.)  837. 
244 


LECT.  v.]  ILLEGAL   CONTRACTS.  229 

Almost  the  converse  of  these  cases  of  deeds  of 
^separation  are  what  are  called  Marriage  broc-  [-.:.,-,o^-, 
age  contracts,  that  is,  where  a  man  has  agreed,  '-  -■ 
in  consideration  of  money,  to  bring  about  a  marriage. 
These  are  all  void  as  against  public  policy,  the  law  con- 
sidering that  unions  so  brought  about  are  unlikely  to  be 
happy  ones.  This  class  of  cases  is  founded  upon  a  case 
in  the  House  of  Peers  {71),^  in  which  Thomas  Thinne 
gave  an  obligation  of  £1000  to  Mrs.  Potter,  conditioned 
to  pay  her  £500  within  three  months  after  he  sliould  be 
married  to  Lady  Ogle,  "  a  widow,"  the  reporter  says, 
"  of  great  fortune  and  honour,  for  she  was  the  daughter 
and  heir  of  Jocelyn  Percy,  Earl  of  Northumberland." 
The  Master  of  the  Kolls  decreed  this  bond  to  be  void ; 
the  Lord  Keeper  reversed  the  decree ;  whereupon  there 
was  an  appeal  to  the  House  of  Peers ;  and,  upon  hear- 
ing the  cause  there,  all  the  Lords  but  three  or  four  were 
of  opinion  that  all  such  contracts  are  of  dangerous  con- 
sequences, and  ought  not  to  be  allowed ;  and  they  re- 
versed the  decree  of  dismissal  made  by  the  Lord  Keeper, 
and  decreed  the  obligation  to  be  void. 

Another,  and  an  extensive  class  of  cases  is  that  in 
which  the  contract  has  a  tendency  to  obstruct  the  course 
of  public  justice.    These  must  be  left  for  the  next  Lecture. 

(n)  Hall  V.  Potter,  3  Lev.  411. 

'  Hall  V.  Potter  (which  is  also  reported  in  1  Eq.  Ca.  Ab.  89,  and  3  P.  Wms. 
392,  and  Show.  P.  C.  76)  has  been  followed  by  a  numerous  class  of  cases  :  Cole 
V.  Gibson,  1  Ves.  503;  Roberts  r.  Roberts,  3  P.  Wms.  74,  see  Mr.  Cox's  note; 
Smith  V.  Bruning,  2  Vern.  392 ;  Duke  of  Hamilton  v.  Lord  Mohun,  lb.  652 ; 
Boynton  v.  Hubbard,  7  Mass.  112;  and  Lord  Redesdale,  when  Chancellor  of 
Ireland,  declared  void  a  bond  given  to  the  obligee  as  a  remuneration  for  hav- 
ing assisted  the  elopement  of  the  obligor  without  the  consent  of  the  wife's 
friends,  though  the  bond  was  given  voluntarily  after  the  marriage,  and  with- 
out any  previous  agreement  therefor:  Williamson  v.  Gihon,  2  Sch.  &  Lef.  362. 
The  civil  law,  however,  it  is  well  known,  in  its  approval  and  encouragement 
of  the  institution  of  marriage,  allowed  the  proxenetce,  or  match-makers,  to 
stipulate,  within  limits,  for  a  reward  for  promoting  marriages :  Code,  Lib.  5, 
tit.  1,  1.  6.     [Crawford  v.  Russell.  62  Barb.  92.— s.]— r. 

245 


p23n  *LECTURE  VI. 

ILLEGAL    CONTRACTS. — FRAUD. —  GAMING     AND     HORSE- 
RACING. WAGERS. 

There  is  another  remarkable  instance  of  contracts 
falling  under  the  class  of  which  we  have  been  treating 
— namely  of  illegality  created  by  the  rules  of  common 
law,  which  it  will  be  right  to  specify  before  proceeding 
to  the  next  branch  of  the  subject.     It  consists  of  con- 
tracts, void,  because  having  a  tendency  to  obstruct  the 
administration  of  justice.     Such  was  the  very  contract 
in  Collins  v.  Blantern  {a),  before  mentioned — the  case 
which  first  established  that  the  person  who  has  executed 
a  deed  is  not  estopped  from  showing  by  way  of  defence, 
that  it  was  executed  for  an  illegal  consideration,  although 
he  would  not  have  been  allowed  to  defend  himself  on 
the  ground  that  there  w^as  no  consideration  for  it  at  all. 
In  that  case,  five  persons  were  indicted  for  perjury,  and 
it  was  agreed  that  Collins,  who  was  their  friend,  should 
buy  off  the  prosecutor's  evidence  by  giving  him  a  note 
for  £350,  in  consideration  of  which  he  undertook  not  to 
appear  at  the  Assizes.     And  it  was  further  agreed  that, 
r*9^9"l    "-^  *order  to  indemnify  Collins  against  the  con- 
sequences of  being  called  upon  to  pay  the  note, 
Blantern  should  give  Collins  his  bond  conditioned  for 
the  payment  of  £350,  the  same  sum  for  which  the  note 
was  made.     In  an  action  brought  upon  the  bond,  the 
Court  of  Common  Pleas  held  that  it  was  void,  and  that 
a  plea  showing  the  consideration  on  which  it  was  given 
was  a  good  answer  to  the  action.     There  is  a  case  of 

(a)  2  Wils.  341,  1  Smith,  L.  C.  387,  Sth  ed. 

246 


LECT.  VI.J  ILLEGAL   CONTRACTS.  232 

Uuwin  V.  LeajDer  {b),  which  involves  the  same  princi- 
ple. There,  an  action  of  ejectment  had  been  brought 
by  Unwin  against  Leaper,  when  the  latter  gave  notice 
of  his  intention  to  sue  Unwin  for  certain  statutable 
penalties  incurred  by  him.  Thereupon  it  was  arranged 
that  the  action  of  ejectment  should  be  dropped,  that 
Unwin  should  pay  down  £50  towards  Leaper's  expenses 
in  that  action,  and  that  Leaper  should  not  proceed  with 
the  suit  for  the  penalties ;  and  the  Court  of  Common 
Pleas  held  that  the  £50  which  had  been  paid  might  be 
recovered  back  as  a  j^ayment  made  in  order  to  com- 
promise a  penal  action.  In  another  instance  (c),  where 
one  of  two  parties  '^'to  an  agreement  to  suppress  r:i-.9oo-| 
a  prosecution  for  embezzlement,  sued  the  other 
for  an  injury  indirectly  arising  out  of  that  agreement, 
he  was  not  allowed  to  maintain  the  action. 

Of  the  soundness  of  these  decisions,  to  use  the  words 
of  the  Court  of  Queen's  Bench,  in  speaking  of  that  in 
Collins  V.  Blantern,  no  doubt  can  be  entertained, 
whether  the  party  accused  were  innocent  or  guilty  of 
the  crime  charged.  If  innocent,  the  law  was  abused  for 
the  purpose  of  extortion  {d)  ;  if  guilty,  the  law  was 
eluded  by  a  corrupt  compromise,  screening  the  criminal 
for  a  bribe  [e)} 

(6)  1  M.  &  Gr.  (39  E  C.  L.  R.)  747. 

(c)  Fivaz  V.  Nicholls,  2  C.  B.  (52  E.  C.  L.  R )  501.  But  where  a  just  and 
bond  fide  debt  actually  exists,  even  though  the  transaction  between  the  parties 
out  of  which  the  debt  arises  possibly  involves  a  criminal  liability,  as  for  in- 
stance, where  the  debt  is  in  respect  of  moneys  received  but  not  paid  over  by 
the  debtor  and  so  possibly  embezzled,  a  threat  to  prosecute  would  not  it  seems 
necessarily  vitiate  a  subseqent  agreement  by  the  debtor  to  give  security  for  tlie 
debt  he  justly  owes:  Flower  v.  Sadler,  10  Q.  B.  D.  572  (C.  A.),  affirming  9  lb. 
83. 

(d)  Goodall  v.  Lowndes,  6  Q.  B.  (51  E  C.  L.  R.)  464;  and  see  Davies  t;. 
London  and  Provincial  Marine  Ins.  Co.,  8  Ch.  Div.  469 ;  47  L.  J.  (Chanc.) 
511. 

(e)  Keir  v.  Leeman,  6  Q.  B.  (51  E.  C.  L.  R.)  316. 

*  Thus,  no  action  will  lie  on  a  contract  to  procure  the  appointment  of  clerk 

247 


233  ILLEGAL  CONTRACTS.        [lECT.  VI. 

Here,  however,  it  is  convenient  to  observe  that  there 
are  some  instances,   in  which   indictments  for  misde- 

of  a  court,  or  any  office  relating  to  the  administration  of  justice :  Haralson  v. 
Dickens,  2  Car.  L.  Rep.  66  ;  Lewis  v.  Knox,  2  Bibb,  453;  Carleton  v.  Wliitcher, 
5  N.  H.  196 ;  Proprietors  v.  Page,  6  lb.  183 ;  or  to  promote  the  election  of  a 
candidate  for  office :  Swayze  v.  Hull,  8  N.  J.  54  ;  Dearborn  v.  Bowman,  3  Mete. 
135;  Duke  v.  Asbee,  11  Ired.  112.  So  of  the  procuring  or  defeating  by  im- 
proper means  or  personal  influence  the  passage  of  an  act  of  the  legislature : 
Wood  V.  M'Cann,  6  Dana,  366;  Clii>pinger  v.  Hepbaugh,  5  W.  &  S.  315;  or 
the  use  of  interest  to  procure  the  pardon  of  a  convict :  Norman  v.  Cole,  3  Esp. 
253  ;  Hatzfield  v.  Gulden,  7  Watts,  152. 

So,  where  in  contemplation  of  an  assignment  for,  or  composition  with  credi- 
tors, or  of  bankruptcy,  an  agreement  whereby  one  creditor  is  to  receive  more 
than  the  others,  cannot,  if  unknown  to  the  rest,  be  enforced :  Jackson  v.  Lomas, 
4  T.  R.  169  ;  Smith  v.  Cuff,  6  M.  &  S.  160;  Baker  v.  Matlack,  1  Ashm.  68; 
Mann  v.  Darlington,  15  Pa.  St.  312.  (See  Bradshaw  v.  Bradshaw,  9  M.  &  W. 
28,  and  Hornton  v.  Riley,  11  lb.  492,  as  to  the  debtor's  right  to  recover  back 
money  so  paid,  which  right  is  distinguished  from  the  principle  in  pari  delicto 
potior  es<  conditio  defendcntis,  on  the  ground  of  advantage  being  taken  of  the 
debtor's  circumstances  to  exercise  oppression  over  him.) 

A  class  of  cases,  however,  should  be  here  referred  to  as  of  a  constant  occur- 
rence. These  depend  on  contracts  based  on  a  compromise  or  compounding  of 
some  offence.  It  is  well  settled  that  an  agreement  to  compound  a  felony 
will  not  be  enforced,  and  any  security  based  upon  such  a  consideration  will  be 
void ;  on  the  other  hand,  some  prosecutions  for  misdemeanors,  as  for  example, 
for  bastardy:  Holcomb  v.  Stimpson,  8  Vt.  144;  Maurer  v.  Mitchell,  9  W.  & 
S.  71;  Robinson  v.  Crenshaw,  2  Stew  &  P.  276;  or,  for  assault  and  battery: 
Price  V.Summers,  2  South.  578  (unless  when  coupled  with  a  riot:  Keir  i'. 
Leeman,  6  Q.  B.  (51  E.  C.  L.  R.)  308  ;  in  error,  9  lb.  (58  E.  C.  L.  R.)  371 ;  or 
•with  an  intent  to  kill :  Gardner  v.  Maxey,  9  B.  Mon.  90),  are  allowed  to  be 
compromised  by  the  parties,  and  to  form  a  valid  consideration  for  promises 
based  on  such  compromise.  Where,  however,  the  relation  of  debtor  and 
creditor  has  existed  between  the  parties,  the  compromise  of  prosecutions  for 
secreting  property,  for  obtaining  money  under  false  pretences,  and  the  like,  is, 
if  not  held  to  form  an  illegal  consideration  (as  it  was  in  the  late  case  of  Shaw 
V.  Reed,  30  Me.  105),  at  least  looked  upon  with  the  strongest  disfavour,  as 
affording  a  ready  instrument  to  abuse  and  oppression :  Prough  v.  Entriken,  11 
Pa.  St.  81.  The  result  of  the  authorities  generally  upon  this  subject  appears 
to  be,  that  where  the  misdemeanor  is  one  in  which  the  welfare  of  society  is 
immediately  concerned,  agreements  based  upon  their  compromise  will  not  be 
sanctioned  (and  its  having  been  done  originally  by  the  leave  of  the  Court 
makes  no  difference :  Keir  v.  Leeman,  9  Q.  B.  (58  E.  C.  L.  R.)  394),  but  the 
rigor  of  the  rule  will  be  relaxed  in  proportion  as  the  general  welfare  ceases  to 
be  interested,  and  the  offence  and  its  punishment  becomes  personal  between 
the  parties,  and  still  more  as  the  prosecution  loses  a  criminal  complexion,  and 
assumes  n  civil  one.  In  perhaps  the  most  recent  prominent  case  in  England, 
Keir  v.  Leeman,  supra,  which  went  on  error  from  the  Queen's  Bench  to  the 

248 


I.ECT.  VI.]  ILLEGAL   CONTRACTS.  233 

meanours  may  be  compromised.  It  is  Avell  known  that 
a  party  committing  certain  private  injuries  may  be  in- 

Exchequer  Chamber,  Chief  Justice  Tindal,  in  delivering  the  opinion  of  the 
latter  tribunal,  said,  that  if  the  matter  were  res  integra,  they  would  have  no 
doubt  in  holding  that  any  compromise  of  any  misdemeanor,  or  any  jiublic 
offence,  was  an  illegal  consideration  to  support  a  promise,  and  that  it  was  re- 
markable what  very  little  authority,  consisting  rather  of  dicla  than  decision, 
there  was  to  support  such  considerations.  "  We  have  no  doubt  that  in  all 
offences  which  involve  damages  to  an  injured  party  for  which  he  may  main- 
tain an  action,  it  is  competent  for  him,  notwithstanding  they  are  also  of  a  pub- 
lic nature,  to  compromise  or  settle  his  private  damage  in  any  way  he  may 
tliink  fit.  It  is  said,  indeed,  that  in  the  case  of  an  assault  he  may  also  under- 
take not  to  prosecute  on  behalf  of  the  public.  It  may  be  so,  but  we  are  not 
disposed  to  extend  this  any  further."  And  the  current  of  more  recent  authori- 
ties on  this  side  of  the  Atlantic,  sets  strongly  against  the  validity  of  such  con- 
siderations: Clark  V.  Ricker,  14  N.  H.  44;  Com.  v.  Johnson,  3  Cush.  454; 
Gardner  v.  Maxey,  9  B.  Mon.  90. — r. 

Where  two  persons  apply  to  the  Governor  of  the  State  to  be  appointed  to 
the  same  office,  and  it  is  agreed  that  one  of  them  shall  withdraw  his  applica- 
tion and  aid  the  other  in  procuring  the  appointment,  in  consideration  of  which 
the  fees  and  emoluments  of  the  office  are  to  be  divided  between  them,  such 
contract  is  illegal  and  void :  Gray  v.  Hook,  4  N.  Y.  449.  So  no  action  will  lie 
for  services  as  agent  in  attending  to  a  claim  against  the  State,  before  the  legis- 
lature, agreements  in  respect  to  such  services  being  against  public  policy,  and 
prejudicial  to  sound  legislation ;  nor  can  a  recovery  be  had  in  such  a  case  on  a 
quantum  meruit,  there  being  no  legal  service  performed :  Harris  v.  Hoof,  10 
Barb.  489.  A  contract  for  the  sale  of  the  personal  influence  of  the  plaintiff  to 
procure  the  enactment  of  a  private  statute  for  the  benefit  of  the  defendant  is 
contrary  to  public  policy  and  void:  Frost  v.  Belmont,  6  Allen,  152  ;  Rose  v. 
Truax,  21  Barb.  361 ;  Gil  v.  Davis,  12  La.  Ann.  219  ;  Davison  v.  Seymour,  1 
Bosw.  88 ;  Powers  v.  Skinner,  34  Vt.  274.  Services  rendered  in  obtaining  the 
X^assages  of  laws  by  the  legislature  may  support  a  claim  for  compensation  when 
publicly  rendered  by  advocates  disclosing  their  true  relation  to  the  subject : 
Wildey  v.  Collier,  7  Md.  273 ;  Sedgwick  v.  Stanton,  14  N.  Y.  289 ;  Bryan  v. 
Reynolds,  5  Wis.  200 ;  Brown  v.  Brown,  34  Barb.  533.  An  agreement  between 
a  subordinate  officer  in  a  custom-house  receiving  a  salary  as  such  and  a  mer- 
chant who  claimed  the  return  of  certain  duties  that  the  former  should  labour  to 
obtain  them  for  a  compen.sation  is  illegal  and  void  :  Salterlee  v.  Jones,  3  Duer, 
102.  A  promise  to  pay  for  services  and  expenses  in  procuring  a  pardon  for  a 
convict  in  the  state  prison  is  not  illegal  or  invalid:  Chadwick  v.  Knox,  31  N. 
H.  226 ;  contra,  Kribben  v  Haycraft,  26  IMo.  396.  A  contract  not  to  bid  at  a 
judicial  sale  is  void  :  Hook  v.  Turner,  22  lb.  333.  But  not  an  agreement  to  pur- 
chase jointly  and  afterwards  divide:  M'Minn  v.  Phipps,  3  Sneed,  196.  A  con- 
tract for  the  sale  of  an  office  is  void  as  against  the  policy  of  the  law :  Eddy  v. 
Capron,  4  R.  I.  394.  An  indemnity  against  the  publication  of  a  libel  is  void  : 
Lea  V.  Collins,  4  Sneed,  393.  And  see  Spinks  v.  Davis,  32  Miss.  152 ;  Nichols 
V.  Mudgett,  32  Vt.  546 ;  Devlin  v.  Brady,  32  Barb.  518;  Morrell  v.  Quarles,  35 

249 


233  ILLEGAL  CONTEACTS.        [lECT.  VI. 

dieted,  as  for  a  misdemeanour,  as  well  as  sued  in  a  civil 
action;  a  remedy  necessary  for  the  party  injured,  who, 
if  he  could  proceed  by  action  only,  would  be  in  fact 
remediless  in  cases  where  the  defendant  could  not  pay 
the  damages  recovered.  In  many  such  cases  it  can 
hardly  be  admitted  that  the  prosecution  is  to  be  consid- 
ered public,  or  that  the  public  interest  is  concerned  in 
bringing  such  an  offender  to  justice  by  way  of  example 
to  others.  '"^Substantially,  the  only  one  wlio 
L  -I  suffers  by  the  wrong  is  the  individual  against 
whom  it  is  committed.  In  instances  of  this  kind,  the 
law  does  not  forbid  a  compromise  between  the  injurer 
and  the  injured.  "  The  law,"  says  the  Court  of  Queen's 
Bench,  in  Keir  v.  Leeman  (/),  "will  permit  a  com- 
promise of  all  offences,  though  made  the  subject  of  a 
criminal  prosecution,  for  which  offences  the  injured 
party  might  sue  and  recover  damages  in  an  action.  It 
is  often  the  only  manner  in  which  he  can  obtain  re- 
dress. But  if  tlie  offence  is  of  a  public  nature,  no 
agreement  can  be  valid  that  is  founded  on  the  considera- 
tion  of  stifling  a  prosecution  for  it."  The  law  will 
therefore  sanction  a  bond,  conditioned  to  remove  a 
public  nuisance,  founded  on  the  abandonment  of  an  in- 
dictment for  that  nuisance,  which  is  in  fact  a  very  com- 
mon instance  of  compromise  {g).  The  compromise  of 
indictments  for  assaults  is  another  frequent  instance  of 
the  same  rule  (A).  But  if,  as  in  Keir  v.  Leeman,  the 
offence  is  not  confined  to  personal  injury,  but  is  accom- 
panied with  riot  and  the  obstruction  of  a  public  officer 
in  the  execution  of  his  duty,  these  are  matters  of  pub- 

(/)  6  Q.  B.  (51  E.  C.  L.  E.)  321. 

(jr)  Fallowes  v.  Taylor,  7  T.  E.  475. 

(A)  Baker  v.  Townsend,  7  Taunt.  (2  E.  C.  L.  E.)  422. 


Ala.  544 ;  Cook  v.  Shipman,  24  111.  614 ;  Brisbois  v.  Sibley,  1  Minn.  230 ;  Valen- 
tine V.  Stewart,  15  Cal.  387 ;  Tool  Co.  v.  Norris,  2  Wall.  45.— s. 
250 


LECT.  VI.]  ILLEGAL    CONTRACTS.  234 

lie  concern,  and  therefore  not  legally  the  subject  of  a 
compromise. 

To  return  to  the  subject  of  contracts  tending  to 
obstruct  the  course  of  justice.  The  case  of  Coppock 
^v.  Bower  (^),  in  which  an  agreement  to  with-  poQ^n 
draw  an  election  petition  in  consideration  of  a 
sura  of  money  was  held  void,  is  another  instance  of 
their  illegality.  So  is  the  case  of  Arkwright  v.  Cant- 
rell  ik),  where  the  grant  of  a  judicial  office  to  a  person 
interested  in  the  matters  which  would  become  the  sub- 
jects of  adjudication,  was  held  void.  For  a  similar 
reason,  contracts  to  induce  voters,  for  any  consideration 
of  advantage  to  themselves,  to  vote  in  favour  of  a  par- 
ticular candidate,  are  illegal  and  void.  Thus,  when  a 
candidate  himself  makes  a  contract  with  any  one  to 
supply  meat  and  drink  to  electors,  it  is  void ;  and  if  the 
things  be  supplied,  the  person  supplying  cannot  recover 
the  price  from  the  candidate  (I)  ;  for,  by  the  policy  of 
the  law,  the  electors  should  be  free  to  use  their  own  un- 
biased judgment  in  selecting  the  candidate  most  fit  to 
serve  the  public  as  a  member  of  the  great  council  of  the 
nation.  Persons  who  have  the  right  of  appointing  to 
public  offices  of  trust  or  to  any  favour  from  the  Crown, 
are  bound  to  use  a  like  discrimination.  All  agreements, 
therefore,  to  pay  money  for  an  appointment  to  any  pub- 
lic office  of  trust,  or  for  the  grant  of  any  public  favour, 
are  illegal  {in)} 

{{)  4  M.  &  AV.  361,  ante,  p.  *18. 

(k)  7  Ad.  &  E.  (34  E.  C.  L.  R.)  365.  See  Dimes  v.  Grand  Junction  Canal 
Co.,  3  H.  L.  C.  759.     A  very  remarkable  case. 

(0  Thomas  v.  Edwards,  2  M.  &  W.  218. 

(m)  Parsons  r.  Thompson,  1  H.  Bl.  322 ;  Hopkins  r.  Prescott,  4  C.  B.  (56  E. 
C.  L.  R.)  578 ;  Harrington  v.  Du  Chatel,  1  Bro.  C.  C.  124 ;  Gr£eme  v.  Wrough- 
ton,  24  L.  J.  (Ex.)  265 ;  Corp.  of  Liverpool  v.  Wright,  28  L.  J.  (Ch.) 
868. 

^  Frost  V.  Belmont,  6  Allen,  152;  Tool  Company  v.  Norris,  2  Wall. 
45.— s 

251 


236  ILLEGAL  CONTRACTS.        [lECT.  VI. 

r^Koop-i  *Agreements  to  indemnify  persons  against 
the  consequences  of  illegal  acts  fall  witliin  the 
same  rule  as  contracts  directly  to  obstruct  the  adminis- 
tration of  justice  (ny  So  also  do  all  promises  which 
are  made  to  obtain  release  from  duress  of  person  by 
illegal  arrest,  or  under  compulsion  of  colourable  legal 
process,  whereby  it  is  made  the  instrument  of  oppres- 
sion or  extortion  ;  but  not  where  the  arrest  was  legal  (o); 
and  for  similar  reasons  money  extorted  by  duress  of  the 
plaintiff's  goods,  and  paid  by  him  under  protest,  may 
be  recovered  back  (p).^ 

(n)  Shackell  v.  Eosier,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  634.  A  contract  with 
one  who  becomes  bail  for  another  on  a  criminal  charge  to  indemnify  him  against 
his  liability  as  bail  is  illegal  as  being  against  public  policy.  Wilson  v.  Strug- 
nell,  7  Q.  B.  D.  548 ;  50  L.  J.  (M.  C.)  145. 

(o)  See  The  Duke  de  Cadaval  v.  Collins,  4  A.  &  E.  (31  E.  C.  L.  R.)  858 ; 
Cummingsv.  Hooper,  11  Q.  B.  (63  E.  C  L.  R.)  112;  Johnson  v.  Royal  Mail 
Steam  Packet  Company,  L.  R.  3  C.  P.  38 ;  37  L.  J.  (C.  P.)  33. 

(p)  Ashraole  v.  Wainwright,  2  Q.  B.  (42  E.  C.  L.  R.)  837  ;  Wakefield  v. 
Newton,  6  Q.  B.  (51  E.  C.  L.  R.)  27-6 ;  Fernley  v.  Branson,  20  L.  J.  (Q.  B  ) 
178. 

^  Mitchell  V.  Vance,  5  Mon.  529;  unless  the  illegal  act  is  already  done,  in 
which  case,  the  agreement  to  indemnify  is  no  encourgement  to  do  future  harm : 
Hackett  v.  Tilly,  11  Mon.  93  ;  Kneeland  v.  Rogers,  2  Hall,  587.  Thus  a  bond 
given  to  a  sheriff  to  indemnify  him  against  a  voluntary  escape  which  had 
happened  is  valid,  though  if  given  in  anticipation  of  such  an  escape  it  would 
fall  within  the  general  rule :  Given  v.  Diggs,  1  Cai.  450 ;  Doty  v.  Wilson,  14 
Johns.  381 ;  and  these  cases,  it  will  be  perceived,  are  analogous  in  principle  to 
those  which,  while  holding  to  be  invalid  bonds  executed  in  consideration  of  a 
future  separation  between  husband  and  wife,  yet  enforce  such  instruments 
where  the  separation  is  to  be  immediate,  or  has  already  taken  place. — K. 

An  agreement  to  indemnify  a  sheriff  for  an  act  to  be  done  by  him  in  plain 
violation  of  his  official  duty,  is  invalid ;  but  such  an  agreement,  in  the  case  of 
a  disputed  right,  is  lawful:  Shotwell  v.  Hamblin,  23  Miss.  156.— s. 

2  It  is  no  objection  to  the  validity  of  a  contract  fairly  entered  into,  where  no 
advantage  was  sought  or  taken  by  the  other  party,  that  at  the  time  of  entering 
into  it  he  was  under  arrest ;  but  where  legal  process  has  been  used  as  a  means 
of  oppression  and  to  extort  disadvantageous  terms  from  a  party  in  custody, 
instruments  in  writing  so  obtained  will  be  set  aside :  Stebbins  v.  Niles,  25  Miss. 
267  ;  Wells  v.  Barnett,  7  Tex.  584 ;  Smith  v.  Atwood,  14  Ga.  402.  A  note 
given  by  a  person  lawfully  imprisoned  in  order  to  procure  his  discharge,  is 
not  invalid  as  being  given  under  duress:  Bates  v.  Butler,  46  Me.  387. 

252 


LECT.   VI.]  ILLEGAL    CONTRACTS.  236 

Maintenance  and  champerty  are  so  often  talked  of  as 
contracts  having  an  illegal  object  and  consideration, 
that  they  seem  to  require  a  slight  allusion  here.  Main- 
tenance consists  in  one  who  has  no  interest  in  the 
subject  of  a  suit,  and  no  just  right  to  interfere  in  it, 
aiding  by  money  or  otherwise  the  j^arties  interested. 
This  is  forbidden  by  the  law,  whose  policy  has  always 
been  to  discourage  ^disputes  and  litigation.  A  r:::9or--| 
contract  therefore  with  such  an  object  is 
void ;  but  a  man  who  has  an  interest  in  the  cause,  or 
reasonably  thinks  he  has,  is  not  guilty  of  maintenance 
if  he  prosecutes  it  in  common  wdth  others,  and  his 
agreement  so  to  do  is  good  (q).  If  a  person,  having 
no  interest  in  a  suit,  interferes  with  the  object  of  shar- 
ing in  the  fruits  of  the  suit,  this  is  champerty  (r).  If, 
therefore,  an  attorney  agrees  not  to  charge  liis  client 
costs,  in  consideration  of  having  for  himself  a  propor- 
tion of  what  he  may  recover  for  him,  this  agreement  is 
champerty,  and  consequently  illegal  and  void  {s)}     If 

(q)  Findon  v.  Parker,  11  M.  &  W.  675.  See  also  as  to  an  action  for  main- 
tenance lying  against  the  maintainer :  Bradlaugh  v.  Xewdegate,  11  Q.  B.  D.  1 ; 
52  L.  .T.  (Q.  B.)  454. 

(r)  Williams  v.  Protheroe,  3  Y.  &  J.  129  ;  Stanley  v.  Jones,  7  Bing.  (20  E. 
C.  L.  R.)  369 ;  Hilton  v.  Woods,  36  L.  J.  (Cli.)  941.' 

(s)  Re  Masters,  4  D.  P.  C.  18,  per  Coleridge,  J.;  ex  parte  Yeatman,  lb.  384; 
Earle  v.  Hop  wood,  30  L.  J.  (C.  P.)  217. 

As  to  duress  of  imprisonment  see  Phelps  v.  Zuschlag,  34  Tex.  371 ;  Feller  v. 
Green,  26  Mich.  70.  An  employment  of  criminal  process  to  obtain  civil 
redress  is  a  misuse  of  process  and  a  fraud  upon  the  law ;  and  securities  pro- 
cured under  the  pressure  of  such  a  proceeding,  by  the  party  promoting  it,  can- 
not bi»  enforced :  Seiber  v.  Price,  26  Mich.  518.  An  arrest  under  a  legal  war- 
rant if  the  object  is  to  extort  money  or  to  coerce  the  settlement  of  a  civil 
claim  constitutes  duress :  Hackett  v.  King,  6  Allen,  58. 

As  to  duress  per  minas  see  Green  v.  Scranage,  19  Iowa,  461  ;  Tapley  v. 
Tapley,  10  Minn.  448  ;  Bane  r.  Detrick,  52  111.  19  ;  Thurman  v.  Burt,  53  lb.  129  ; 
Bosley  v.  Shanner,  26  Ark.  280  ;  Knapp  v.  Hyde,  60  Barb.  80 ;  Miller  v.  Miller, 
68  Pa.  St.  486  ;  Plant  v.  Gunn,  2  Wood,  372  ;'  Smith  v.  Rowley,  66  Barb.  502. 

As  to  duress  of  property  see  Spaids  v.  Barrett,  57  111.  289  ;  Hibbard  v.  Mills, 
46  Vt.  243.— s. 

^  Upon  the  subject  of  "  contingent  fees  "  the  law  is  not  uniform  throughout 

253 


237  ILLEGAL  CONTRACTS.        [lECT.  YI. 

no  suit  be  depending,  or  any  stipulation  for  tlie  com- 
mencement of  one,  a  contract  to  supply  documents  and 
information  whereby  property  may  be  recovered,  in 
consideration  of  a  share  of  the  property  when  recovered, 
is  legal.     But  if  persons,  having  themselves  no  claim 

the  various  States.  Perhaps  it  is  a  fair  statement  of  the  preponderating  opin- 
ion of  the  better  class  of  the  profession  to  say  that  while  it  is  generally  recog- 
nized that  cases  may  arise  in  which  a  lawyer  is  warranted  in  undertaking  the 
case  of  a  client  who  will  be  unable  to  compensate  him  unless  successful  in 
the  suit,  because  a  refusal  might  result  in  a  failure  to  establish  a  just  claim 
and  a  practical  denial  of  justice  to  the  suitor,  still  such  engagements  are  to  be 
entered  into  with  extreme  caution.  The  practice  of  taking  cases  as  a  gen- 
eral rule  upon  an  agreement  that  compensation  is  to  be  contingent  upon  suc- 
cess would  be  generally  condemned.  Bee  Judge  Sharswood's  "  Professional 
Ethics"  upon  this  subject,  and  also  an  interesting  controversy  in  the  Albany 
Law  Journal  (vol.  23,  pp.  441,  479,  484,  and  vol.  24,  pp.  4,  IS,  24). 

As  to  the  legality,  as  distinguished  from  the  policy  and  morality,  of  the  prac- 
tice, we  find  that  while  such  arrangements  have  sometimes  been  held  cliam- 
pertous,  and  while  they  are  always  regarded  with  disfavour  by  the  Courts,  they 
have  been  sustained  in  some  States.  In  the  most  recent  case  in  Pennsyl- 
vania, the  legality  of  such  contracts  in  that  State  is  said  to  be  well  settled : 
Perry  v.  Dicken,  14  W.  N.  C.  245.  On  the  other  hand,  Chief  Justice  Gray,  in 
the  case  of  Ackert  v.  Barker,  131  Mass.  436,  cites  the  Massachusetts  decisions, 
and  after  declaring  upon  their  authority  that  such  contracts  are  void,  he  goes 
on  to  say :  "  The  law  of  Massachusetts  being  clear,  there  would  be  no  pro- 
priety in  referring  to  the  conflicting  decisions  in  other  parts  of  the  country. 
If  it  is  thought  desirable  to  subordinate  the  rules  of  professional  conduct  to 
mercantile  usages,  a  change  of  our  law  in  this  regard  must  be  sought  from 
the  Legislature,  and  not  from  the  Courts."  Other  important  American  cases 
are  discussed  in  the  articles  in  the  Albany  Law  Journal  above  referred  to,  and 
see  also  Weeks,  Attorneys  at  Law,  ^^  350,  et  seq. 

In  County  of  Chester  v.  Barber,  97  Pa.  St.  45o,  Paxson,  J.,  said  :  "  That  an 
attorney  may  make  any  contract  he  sees  proper  with  his  client  in  regard  to  his 
compensation,  where  the  client  is  a  private  citizen,  and  acting  in  his  own  be- 
half, is  not  denied.  All  that  the  law  will  do  in  such  case  is  to  scrutinize  the 
transaction  and  see  that  it  is  fiiir  and  that  no  unconscionable  advantage  iias 
been  taken  either  of  the  necessities  or  the  ignorance  of  the  client."  The  burden 
is  upon  the  attorney  to  show  the  fairness  of  the  transaction :  Nesbit  v.  Lock- 
man,  34  N.  Y.  167 ;  Hitchings  v.  Van  Brunt,  38  lb.  335.  As  to  whether  the 
fact  that  a  champertous  agreement  has  been  made  between  the  plaintiff  and 
his  attorney  can  be  urged  as  a  defence  to  the  action,  the  decisions  are  conflict- 
ing. The  weight  of  authority  would  seem  to  be  against  it.  See  Courtright  v. 
Burnes,  2  McCrary,  532 ;  Whitney  v.  Kirtland,  27  N.  J.  Eq.  333 ;  Allison  v. 
Eailroad,  42  Iowa,  274 ;  Eobinson  v.  Beall,  26  Ga.  17 ;  sed  contra,  Greenman 
V.  Cohee,  61  Ind.  201 ;  Barker  v.  Barker,  14  Wis.  142 ;  Webb  v.  Armstrong,  5 
Humph.  379  ;  Morrison  v.  Deaderick,  10  Humph.  342. 

254 


LECT.  yi.]  ILLEGAL   CONTRACTS.  237 

on  the  property,  agree  with  a  claimant  that  legal  pro- 
ceedings shall  be  instituted  in  his  name  to  recover  it, 
and  they  will  supply  him  with  documents,  information, 
and  evidence  not  specified,  but  such  evidence  as  will 
enable  him  to  recover  it,  and  to  be  rewarded  with  a 
share  when  ^recovered,  this  is  maintenance  in 
its  worst  aspect  (t) .  And  where,  in  considera-  ^  '  -I 
tion  that  the  plaintiff  would  take  the  necessary  steps  to 
contest  a  will,  and  would  advance  money  and  obtain 
evidence  for  such  purpose,  and  instruct  an  attorney, 
defendant  promised  plaintiff  half  the  jjroperty  which 
might  come  to  defendant  by  reason  of  such  proceedings, 
this  agreement  was  held  void  as  amounting  to  cham- 
perty ;  although  the  plaintiff  was  a  relation  of  the  de- 
fendant, and  had  some  collateral  interest  in  the  suit  {u). 
It  is  worth  observing,  that  it  is  mainly  for  the  pur- 
pose of  avoiding  maintenance  that  the  rule  of  law  for- 
bidding the  assignment  of  choses  in  action  was  estab- 
lished [x),  a  rule  which,  as  the  law  admitted  the  assignee 
to  sue  in  the  name  of  the  assignor  was  seldom,  in  prac- 
tice, allowed  to  interfere  with  the  liberty  required  by 
trade  and  commerce.  The  disadvantages,  however,  of 
the  rule  are  now  obviated  by  the  j^rovisions  of  the  Judi- 
cature Act  of  1873,  to  which  I  shall  liave  occasion 
again  to  refer  you  {yY 

{t)  Sprye  v.  Porter,  26  L.  J.  (Q.  B.)  64 ;  7  E.  &  B.  (90  E.  C.  L.  E.)  58 ; 
Simpson  v.  Lamb,  lb.  121 ;  7  E.  &  B.  (90  E.  C.  L.  E.)  84 ;  Knight  v.  Bowyer, 
26  L.  J.  (Ch.)  769 ;  27  L.  J.  (Ch.)  520 ;  Anderson  v.  Eadcliffe,  28  L.  J.  (Q.  B.) 
32 ;  S.  C.  in  Ex.  Ch.,  29  L.  J.  (Q.  B.)  128. 

(m)  Hutley  v.  Hutley,  L.  R.  8  Q.  B.  112 ;  42  L.  J.  (Q.  B.)  52. 

\x)  Litt.  347;  Co.  Litt.  214  a;  Shep.  Touch.  240. 

(y)  See  as  to  tlie  assignment  of  choses  in  action,  36  &  37  Vict.  c.  66,  s.  25, 
Bub-sec.  6 ;  and  jjost,  Lect.  VII.,  "Assignment  of  Contracts." 


^  The  offence  of  maintenance  seems  now  to  be  confined  to  the  intermeddling 
^f  a  stranger  in  a  suit  for  the  purpose  of  stirring  up  strife  and  continuing 
litigation  :  Dorwin  v.  Smith,  35  Vt.  09.     An  agreement  between  an  attorney 

255 


239  ILLEGAL  CONTRACTS.        [lECT.  VI. 

r=i:ooo"i  *A11  contracts  between  British  subjects  and 
alien  enemies,  not  having  a  ncense  to  trade 
with  this  country,  are  void,  and  cannot  be  enforced, 
even  upon  the  return  of  peace  (z).  The  sovereign  of 
this  country  has  a  right  to  proclaim  war,  with  all  its 
consequences,  enforcing  or  mitigating  them  either  gen- 
erally or  in  particular  instances,  as  may  be  thought 
best  by  the  Government.  One  of  these  consequences 
is,  that  trade  and  dealing  Avitli  the  enemy,  unless  ex- 
pressly permitted,  are  forbidden.  For  a  British  subject, 
not  domiciled  in  a  neutral  country,  to  ship  a  cargo  from 
an  enemy's  port  is  prima  facie  dealing  and  trading  with 
the  enemy,  and  therefore  forbidden  by  law ;  and  con- 
sequently a  contract  made  before  the  war,  under  which 
it  is  agreed  that  a  cargo  shall  be  shi2:)ped  from  a  port 
which,  by  the  declaration  of  war,  becomes  that  of  the 
enemy,  is  thereby  rendered  illegal,  and  no  action  can 
be  founded  upon  the  fact  of  its  not  being  performed  (a) . 
But  if  the  contract  has  been  made  before  the  war  be- 


(z)  Kensington  v.  Inglis,  8  East,  273.    See  Potts  v.  Bell,  8  T.  R.  548. 

(a)  Esposito  V.  Bowden,  27  L.  J.  (Q.  B.)  17,  in  Ex.  Ch. ;  7  E.  &  B.  (90  E. 
C.  L.  R.)  763;  Reid  v.  Hoskins,  24  L.  J.  (Q.  B.)  315;  5  E.  &  B.  (85  E.  C.  L. 
E.)  729 ;  20  L.  J.  (Q.  B.)  5  ;  6  E.  &  B.  (88  E.  C.  L.  R.)  953,  in  Ex.  Ch. 


and  his  client  that  he  shall  be  first  paid  out  of  the  funds  recovered  is  not 
maintenance  or  champerty :  Christie  v.  Sawyer,  44  N.  H.  298 ;  Jordan  v.  Gil- 
len,  lb.  424;  Moody  f.  Harper,  38  Miss.  599;  Ryan  v.  Martin,  16  Wis.  57. 
— S. 

In  Sedgwick  v.  Stanton,  4  Kernan,  301,  Selden,  J.,  said :  "  I  still  think,  in 
view  of  the  manifest  tendency  of  modern  judicial  opinions,  as  well  as  of  the 
plain  scope  and  intent  of  our  Legislature  upon  the  subject,  that  not  a  vestige 
of  the  law  of  maintenance,  including  that  of  champerty,  now  remains  in  this 
State,  except  what  is  contained  in  the  Revised  Statutes."  See  on  this  subject 
Thompson  v.  Reynolds,  73  III.  11 ;  Backus  v.  Byron,  4  Mich.  535;  Danforth  v. 
Streeter,  28  Vt.  490 ;  Voorhees  «.  Dorr,  51  Barb.  580;  Sherley  ?;.  Riggs,  11 
Humph  53;  Smith  v.  Thompson,  7  B.  Mon.  305;  Taylor  v.  Gilman,  58  N.  H. 
417  ;  Richardson  v.  Rowland,  40  Conn.  572;  Hoffman  v.  Vallejo,  45  Cal.  564; 
Lytle  V.  State,  17  Ark.  608. 
256 


LECT.  VI.]  ILLEGAL   CONTRACTS.  239 

tween  their  respective  countries  began,  the  parties  thereto 
may  sue  upon  it  when  peace  is  restored  (^)^ 

Agreements  contravening  the  ends  and  objects  of  the 
enactments  of  tlie  Legislature,  or,  as  it  is  *most  p;:o4A-| 
commonly  expressed,  the  policy  of  those  enact- 
ments, are  void  (c).  And  this  class  of  illegality  is 
properly  arranged  with  other  instances  of  illegality  by 
the  common  law,  because  it  does  not  consist  in  the 
breach  of  any  enactment  of  a  statute,  but  violates  the 
2:>rinci23le  of  the  common  law,  which  is  to  carry  into 
effect  the  intent  and  object  of  the  Legislature.  The 
most  common  instances  of  this  illegality  are  afforded  by 
agreements  to  give  a  creditor  of  a  bankrupt  or  insol- 
vent more  than  his  equal  share  of  the  bankrupt's  or  in- 
solvent's estate,  which  it  is  the  object  of  the  Bankrupt 
and  Insolvent  Acts  to  divide  equally  amongst  his  credi- 
tors (d).  An  instance  may  also  be  given  from  the  case 
of  Prole  V.  Wiggins  (e)  where  the  agreement  was  to 
evade  the  provisions  (/)  of  the  Aj)othecaries  Act  (55 
Geo.  IIL  c.  194,  s  15),  which  required  that  a  student, 
previously  to  being  admitted  to  examination  for  the 
purpose  of  obtaining  his  certificate  to  practise  as  an 
apothecary,  should  have  served  an  apprenticeship  for 

(6)  Alcenius  v.  Nygrin,  24  L.  J.  (Q.  B.)  19 ;  4  E.  &  B.  (82  E.  U.  L.  R.)  217. 

(c)  Ritchie  v.  Smith,  6  C.  B.  (GO  E.  C.  L.  R.)  462. 

(d)  Staines  v.  Wainwright,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  174;  Davis  v. 
Holding,  1  M.  &  W.  1.56;  Tabram  v.  Freeman,  2  C.  &  M.  451;  Wilkin  v. 
Manning,  23  L.  J.  (Ex  )  174  ;  9  Ex.  575.  See  Nerot  v.  Wallace,  3  T.  R.  17, 
a  very  instrnctive  case;  Hills  v.  Mittson,  22  L  J.  (Ex.)  273;  8  Ex.  751; 
Murray  v.  Reeves,  8  B.  &  C.  (15  E.  C.  L.  R.)  421  ;  Humphries  v.  Smith,  22 
L.  J.  (Q.  B.)  121. 

(e)  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  230. 

(/)  Now  repealed  by  37  &  38  Vict.  c.  34,  s.  2. 

1  Condon  v.  Walker,  1  Yeates,  483;  Cambioso  v.  MofFett,  2  Wash.  C.  C.  98  ; 
United  States  v.  Lap^ne,  17  Wall,  601 ;  Whitfield  v.  United  States,  92  U.  S. 
165;  Railey  v.  Gay,  20  La.  Ann.  158;  Clements  v.  Yturria,  14  Hun.  151  ; 
Bank  of  New  Orleans  v.  Matthews,  49  N.  Y.  12 ;  Hill  v.  Spear,  50  N.  H. 
253. 

17  257 


240  ILLEGAL    C0^' TRACTS.  [lECT.  VI. 

five  years.  Here  the  father  of  a  student  agreed  with 
an  apothecary  to  take  his.  son  as  an  apprentice  for  two 
r*94n  J^^^^f  ^"^  to  antedate  the  ^'articles,  so  that  it 
should  seem  that  he  had  been  apprenticed  for 
the  legal  term  of  five  years,  in  order  that,  at  the  expi- 
ration of  two  years  only,  he  miglit  be  admitted  to  his 
examination,  and  gave  the  apothecary  a  bond  to  secure 
the  payment  of  a  premium  stipulated  to  be  given  upon 
such  apprenticeship.  The  Court  of  Common  Pleas, 
however,  held  that  the  bond  was  clearly  void.  So,  too, 
an  agreement  by  a  shareholder  in  a  company  which  is 
being  compulsorily  wound  up,  that  in  consideration  of 
pecuniary  equivalent  lie  will  endeavour  to  postj)one  the 
making  of  a  call,  or  will  support  the  claim  of  a  credi- 
tor, is  illegal,  as  being  contrary  to  the  policy  of  the 
Winding-up  Acts  (g). 

In  the  cases  lately  referred  to,  so  much  is  said  of  the 
policy  of  the  law  and  public  policy,  that  it  is  desirable 
to  add  a  few  words  in  explanation  of  them.  These 
terms  have  been  used  to  express  an  important  princi])le 
from  very  early  periods  (A),  and  one  of  the  most  im- 
portant cases  of  very  modern  times  has  been  decided 
upon  grounds  of  public  policy  (i)}     They  are,  however, 

(g)  Elliott  V.  Richardson,  L.  R.  5  C.  P.  744 ;  39  L.  J.  (C.  P  )  340. 
(/t)  Shep.  Touch.  132;  Co.  Litt.  206  b. 
(i)  Egerton  v.  Brownlow,  4  H.  L.  C.  1. 

'  There  is  a  disposition,  especially  in  recent  cases,  to  recognize  very  fully  the 
principle  that  when  parties  of  full  age  and  in  the  possession  of  all  their 
faculties  choose  to  make  a  bargain  which  is  not  strictly  illegal  and  does  not 
involve  consequences  of  positive  harm  to  third  parties  or  to  the  community 
generally,  the  true  "policy  of  the  law"  is  to  see  that  they  carry  it  out.  Emi- 
nent judges  have  expressed  dissatisfaction  at  the  lengths  to  which  the  Courts 
have  gone,  and  the  tendency  is,  not  to  allow  the  doctrine  to  be  pushed  further. 
In  Ricardson  v.  Mellish,  2  Bing.  (9  E.  C.  L.  R.)  229,  Best,  C.  J.,  said  :  "I  am 
not  much  disposed  to  yield  to  arguments  of  public  policy.  I  think  the  Court 
of  Westminster  Hall  (speaking  with  deference,  as  an  humble  individual  likej 
myself  ought  to  speak)  have  gone  much  further  than  they  were  warranted  inl 
going  in  questions  of  policy :  they  have  taken  on  themselves,  sometimes, 

258 


LECT.  VI.]  ILLEGAL   CONTKACTS.  241 

used  indiscriminately  in  many  of  the  cases,  although 
perhaps  the  phrase  "  policy  of  the  law  "  indicates  more 
correctly  the  sense  in  which  the  terms  are  used  in  law, 
than  the  words  "public  policy."  Whichever  form  is 
^employed,  two  distinct  classes  of  things  are  re- 
ferred to  by  them.     Sometimes  they  indicate  the    f  "242] 


decide  doubtful  questions  of  policy  ;  and  they  are  always  in  danger  of  so  do- 
ing, because  courts  of  law  look  only  at  the  particular  case,  and  have  not  the 
means  of  bringing  before  them  all  those  considerations  which  ought  to  enter 
into  the  judgment  of  those  who  decide  on  questions  of  policy."  In  Hilton  v. 
Eckersley,  6  E.  &  B.  (88  E.  C.  L.  K.)  64,  Lord  Campbell  said:  "I  enter  upon 
such  considerations  with  much  reluctance,  and  with  great  apprehension,  when 
I  think  how  different  generations  of  judges,  and  different  judges  of  the  same 
generation,  have  differed  in  opinion  upon  questions  of  political  economy  and 
other  topics  connected  with  tlie  adjudication  of  such  cases.  And  I  cannot 
iielp  thinking  that,  where  there  is  no  illegality  in  bonds  and  other  instru- 
menrs  at  common  law,  it  would  have  been  better  that  our  Courts  of  justice  had 
been  required  to  give  effect  to  them  unless  where  they  are  avoided  by  Act  of 
Parliament.  By  following  a  different  course,  the  boundary  between  judge- 
made  law  and  statute-made  law  is  very  difficult  to  be  discovered.  But  there 
certainly  is  a  large  clasps  of  decisions  whicli  will  be  found  collected  in  the  re- 
port of  the  recent  Bridgewater  Case  in  the  House  of  Lords  (Egerton  v.  Earl 
Brmynlow,  4  H.  L.  C.  1)  to  the  effect  that,  if  a  contract  or  a  will  is,  in  the 
opinion  of  the  Judges  before  whom  it  comes  in  suit,  clearly  contrary  to  public 
policy,  so  that  by  giving  effect  to  it  the  interests  of  the  public  would  be  pre- 
judiced, it  is  to  be  adjudged  void."  In  Printing  and  Numerical  Re-isterin<r 
Co.  V.  .Sampson,  L.  R.  19  Eq.  465,  Jessel,  M.  E.,  said:  "It  must  not  be  for- 
gotten that  you  are  not  to  extend  arbitrarily  those  rules  which  say  that  a  given 
contract  is  void  as  being  against  public  policy,  because  if  there  is  one  thing 
which  more  than  another  public  policy  requires,  it  is  that  men  of  full  age  and 
competent  understanding  shall  have  the  utmost  liberty  of  contracting,  and 
Ihat  their  contracts,  when  entered  into  freely  and  voluntarilv,  shall  be  lield 
sacred  and  shall  be  enforced  by  Courts  of  justice.  Therefore  you  have  this 
paramount  public  policy  to  consider -that  you  are  not  lightly  to  interfere 
with  this  freedom  of  contract.  Now,  there  is  no  doubt  pubfic  policy  mav  say 
that  a  contract  to  commit  a  crime,  or  a  contract  to  give  a  reward  to  anotiler  to 
commit  a  crime,  is  necessarily  void.  The  decisions  have  gone  further,  and 
contracts  to  commit  an  immoral  offence,  or  to  give  money  or  reward  to  another 
to  commit  an  immoral  offence,  or  to  induce  another  to  do  something  a-ainst 
the  general  rules  of  morality,  though  far  more  indefinite  than  the  previous 
class,  have  always  been  held  to  be  void.  I  should  be  sorry  to  extend  the  doc- 
trine much  further.  I  do  not  say  there  are  no  other  cases  to  which  it  does 
apply ;  but  I  should  be  sorry  to  extend  it  much  further."  And  Frv  J  vx- 
pressed  his  approval  of  these  remarks  in  Rousillon  v.  Eousillon,  14  Ch.  Div. 
36o.    See  Hill  v.  Spear,  50  N.  H.  253. 

259 


242  ILLEGAL  CONTRACTS.        [leCT.  VI. 

spirit  of  a  law  as  distinguished  from  the  letter  of  it ;  as 
when  it  is  said  tliat  contracts  made  by  a  trader,  giving 
a  preference  to  particular  creditors,  although  not  for- 
bidden by  the  letter  of  any  enactment,  violate  the  policy 
of  the  bankrupt  laws,  the  first  object  and  policy  of 
those  laws  being  to  make  a  rateable  distribution  of  the 
bankrupt's  property  amongst  all  his  creditors  {j).  In 
this  sense  the  words  are  also  used,  when,  in  construing 
a  particular  law,  the  Judges  look  at  the  object  and  policy 
with  which  it  was  framed,  and  the  evil  which  it  was  ap- 
parently intended  to  remove  {k).  They  use  the  policy 
of  a  particular  law  as  a  key  to  open  its  construction. 

At  other  times  these  expressions  indicate  a  principle 
of  law,  which  holds  that  no  subject  can  lawfully  do  that 
which  lias  a  tendency  to  be  injurious  to  the  public,  or 
against  the  public  good  (I).  If  this  be  understood  as 
the  public  good,  recognized  and  protected  by  the  most 
general  maxims  of  the  law  and  of  the  constitution,  it 
furnishes  a  rule  much  more  general  than  the  first  class, 
yet  definite  in  its  terms,  and  clearly  distinguishable 
from  that  class  of  jDublic  policy  or  political  expediency 
which  would  comprise  such  questions,  as,  whether  it  is 
wise  to  have  a  sinking  fund  or  a  paper  circulation,  and 
*  which  would  properly  guide  the  Legislature 
■-  -'or  the  executive  government  in  determining  any 
question  which  they  might  have  to  deal  with.  It  is 
evident  that  Courts  of  Law  cannot  decide  upon  these 
considerations. 

It  would  seem  that  all  the  cases  which  have  been  de- 
cided upon  the  ground  of  public  policy  are  referable  to 
one  or  other  of  the  two  classes  above  mentioned,  and 
perhaps  this  section  of  law  cannot  be  summed  up  in  a 

(j)  4  H.  L.  C.  87,  per  Cressivell,  J. ;  Coles  v.  Strick,  15  Q.  B.  (69  E.  C.  L.  E.)  % 
(k)  Egerton  v.  Brownlow,  at  p.  107,  per  Alderson,  B. 
(Z)  lb.  196,  per  Lord  Truro. 

260 


LECT.  VI.J  ILLEGAL    CONTEACTS.  243 

way  more  satisfactory  to  the  reader  than  by  quoting  the 
words  of  Parker,  C.  J.,  in  the  famous  case  of  Mitchell 
V.  Reynolds  (m)  :  "  All  the  instances  of  a  condition 
against  law  in  a  proper  sense  are  reducible  under  one 
of  these  heads :  1st,  either  to  do  something  that  is 
vialiim  in  se  or  malum  prohibitum  ;  2ndly,  to  omit  the 
doing  of  something  that  is  a  duty ;  ordly,  to  encourage 
such  crimes  and  omissions.  Such  conditions  as  these, 
the  law  will  always,  and  without  regard  to  circum- 
stances, defeat,  being  concerned  to  remove  all  tempta- 
tions and  inducements  to  those  crimes."  For  when  the 
letter  of  the  law  forbids  to  do  anything  which  is  malum 
in  se  or  malum  prohibitum,  and  prescribes  the  per- 
formance of  all  which  it  considers  as  a  duty,  it  may 
well  be  thought  that  public  policy  or  the  policy  of  the 
law  forbids  to  do  anything  which  may  encourage  the 
wrong  or  deter  from  the  duty.^ 

*The  instances  which  1  have  mentioned  are  r*244'i 
those  in  which  illegality  at  common  law  is 
most  frequently  set  up  for  the  purpose  of  invalidating 
a  contract.  To  these  must  be  added  the  third  class  of 
cases  which  I  specified  ;  those,  namely,  in  which  the  con- 
tract is  avoided  on  the  ground  of  fraud ;  that  is,  deceit 
practised  upon  the  contracting  party  in  order  to  induce 
him  to  enter  into  it  {n).     This  is  so  well  known  a  point 

{m)  1  P.  Wms.  189;  1  Smith,  L.  C.  424,  8th  ed. 

{n)  Evans  v.  Edmonds,  22  L.  J.  (C.  P.)  211 ;  13  C.  B.  f76  E.  C.  L.  R.)  777 ; 
Bwlchy  Plwmhead  Mining  Co.  v.  Baynes,  36  L.  J.  CEx.)  183;  Central  Rail- 
way ('orapany  of  Venezuela  v.  Kisch,  36  L.  J.  (Ch.)  849;  Koss  v.  Estates  In- 
vestment Society,  36  L.  J.  (Ch.)  54. 

^  Debts  contracted  for  supplies  used  in  carr_ving  out  an  illegal  contract  may 
V  recovered  notwithstanding  the  knowledge  of  the  creditor  that  the  supplies 
were  to  be  used  for  sucli  a  purpose ;  but  the  creditor  cannot  recover  if  he  did 
any  act  in  aid  of  the  illegal  purpose:  Kottwitz  ?•.  Alexander,  34  Tex.  689. 
Money  loaned  to  be  wagered  on  a  horse-race  cannot  be  recovered:  Alfriend  v. 
Hughes,  4  Bush,  40 ;  M'Gavock  v.  Puryear,  6  Cold,  34  ;  Tatum  v.  Kelley,  26 
Ark.  209.— s. 

261 


244  ILLEGAL   CONTRACTS.  [lECT.  VL 

and  one  of  such  continual  recurrence  in  practice,  that  it 
is  useless  to  multiply  examples  of  its  application.  As  to 
the  deceit,  it  may  be  of  an  active  kind,  as  falsehood  and 
misrepresentation  (o)  actually  used  by  one  party  for  the 
purpose  of  deceiving  the  other ;  or  it  may  be  passive,  as 
vrhere  a  vendor  knows  that  a  purchaser  labours  under  a 
delusion,  which  he  also  knows  is  influencing  his  judgment 
in  favour  of  purchasing,  and  suffers  him  to  complete  his  pur- 
chase under  that  delusion  {p)}  The  plaintiffs  prepared 
an  agreement  of  guaranty  in  which  they  recited  a  prior 
r*94'^1  ^gi'^ement,  by  which  it  appeared  that  they  "^had 
already  trusted  the  debtor  on  the  guaranty  of  A. 
B.,  that  the  debtor  had  been  sometime  salesman  to  them, 
on  the  terms  that  he  was  to  be  answerable  for  the  price 
of  the  articles  sold  by  him,  and  to  pay  for  them 
monthly,  and  that  in  order  to  induce  them  to  continue 
the  arrangement  defendant  had  agreed  to  give  a  guar- 
anty as  after-mentioned.  The  agreement  then  went  on 
to  provide  that  defendant  should  give  a  continuing 
guaranty  to  plaintiffs  for  three  years,  to  secure  the 
amount  of  any  balance  that  might  at  any  time  during 
those  years  be  due  to  them.  But  it  did  not  recite,  as 
was  the  fact,  that  any  debt  was  then  due  to  them,  nor 
did  defendant  know  it.  This  agreement  was  executed 
by  defendant,  without  making  any  inquiry.     The  Ex- 

(o)  Taylor  v.  Ashton,  11  M.  &  W.  400;  Barley  v.  Walford,  9  Q.  B.  (58  E. 
C.  L.  R.)  197;  Barnes  v.  Pennell,  2  H.  L.  C.  497  ;  Gerhard  v.  Jiates,  22  L.  J. 
(Q.  B.)  867  ;  2  E.  &  B.  (75  E.  C.  L.  R.)  476 ;  S.  C. 

{p)  Hill  V.  Gray,  1  Stark  (2  E.  C.  L.  R.)  434.  See  Keates  v. Lord  Cadogan, 
20  L.  J.  ('.'.  P.)  76  ;  10  C.  B.  (70  E.  G.  L.  R.)  591. 


^  A  contract  to  be  obligatory  must  be  justly  and  fairly  made.  The  undue 
concealment  which  amounts  to  a  fraud  is  the  non-disclosure  of  those  facts 
and  circumstances  which  one  party  is  under  some  legal  or  equitable  obliga- 
tion to  commimicate  to  the  otlier,  and  which  the  latter  has  a  right  to  know. 
The  concealment  of  facts  must  be  by  a  party  who  is  under  some  special  obli- 
gation, by  confidence  reposed  or  otherwise,  to  communicate  them  truly . 
Mitchell  V.  McDougall,  G2  111.  498,— s. 

262 


LECT.  VI.]  ILLEGAL   CO^"  TRACTS.  245 

chequer  Chamber  considered  that  there  was  evidence 
that  plaintiffs  had  intentionally  made  a  fraudulent  mis- 
representation to  defendant  to  induce  him  to  sign  the 
agreement  [q).  But  that  a  vendor  may  go  a  consider- 
able way  towards  dishonesty  without  rendering  him- 
self liable  to  lose  the  benefit  of  the  contract  he  has 
made,  is  shown  by  the  recent  case  of  Ward  v.  Hobbs  (r). 
There  the  defendant  sent  for  sale  to  a  public  market 
pigs  which,  according  to  the  finding  of  the  jury,  he 
knew  to  be  infected  with  a  contagious  disease ;  they 
were  exposed  for  sale  subject  to  a  condition  that  no 
warranty  would  be  given  and  no  compensation 
*would  be  made  in  respect  of  any  fault.  No  r:::o4(^-i 
verbal  representation  was  made  by  or  on  behalf 
of  the  defendant  as  to  the  condition  of  the  pigs.  The 
plaintiff"  having  bought  the  pigs,  put  them  with  other 
pigs,  which  became  infected ;  some  of  the  pigs  bought 
from  the  defendant  and  also  some  of  those  with  which 
they  were  put  died  of  the  contagious  disease.  The 
plaintiff*  having  sued  to  recover  damages  for  the  loss 
which  he  had  sustained,  the  Court  of  Appeal  held 
(reversing  the  judgment  of  the  Queen's  Bench  Divi- 
sion), that,  although  the  defendant  might  have  been 
guilty  of  an  offense  against  the  Contagious  Diseases 
(Animals)  Act,  1869  (32  &  33  Vict.  c.  78),  s.  57,  yet 
he  was  not  liable  to  the  plaintiff,  for  that  his  conduct 
in  exposing  his  pigs  for  sale  in  the  market  did  not 
amount  to  a  representation  that  they  were  free  from  dis- 
ease. This  judgment  of  the  Court  of  Appeal  w^as  sub- 
sequently affirmed  by  the  House  of  Lords  (s). 

It  has  sometimes  been  supposed  that  there  was  such  a 


(q)  Lee  V.  Jones,  34  L.  J.  (C.  P)  131. 

(r)  3  Q.  B.  D.  150 ;  47  L.  J.  (Q.  B.,  etc.)  90,  reversing  2  Q.  B.  D.  331,  46  L. 
J.  (Q.  B  ,  etc.)  473. 
(a)  Ward  v.  Hobbs,  4  App.  Cas.  13;  48  L.  J.  (Q.  B.)  281. 

263 


246  ILLEGAL  CONTRACTS.        [lECT.  VI. 

thing  as  legal  fraud,  which  would  invalidate  a  contract 
though  there  was  no  moral  fraud  in  the  transaction. 
In  the  recent  case  of  Joliffe  v.  Baker  {i),  this  doctrine 
has  been  examined  at  some  length,  and  the  conclusion 
there  arrived  at  is  that  such  a  distinction  is  not  main- 
p-j.^  .  _-|  tainable.  And  *  Watki7i  Williams,  J.,  in  deliv- 
ering the  judgment  of  the  Court  in  that  case, 
adopts,  with  regard  to  the  expression  of  legal  fraud,  the 
words  of  Bramwell,  L.  J.,  in  Weir  v.  Bell  (v),  where  he 
says:  "I  do  not  understand  legal  fraud.  To  my  mind, 
it  has  no  more  meaning  than  legal  heat  or  legal  cold, 
legal  light  or  legal  shade.  There  never  can  be  a  well- 
founded  complaint  of  legal  fraud,  except  where  some 
duty  is  shewn  and  correlative  right,  and  some  violation 
of  that  duty  and  right.  And  when  these  exist,  it  is 
much  better  that  they  should  be  stated  and  acted  on, 
than  that  recourse  should  be  had  to  a  phrase  illogical  and 
unmeaning,  with  the  consequent  uncertainty."  In 
order,  indeed,  to  render  a  representation  fraudulent  in 
contemplation  of  law,  "  it  is  not  necessary  that  it  should 
be  false  to  the  knowledge  of  the  party  making  it ;  if  it 
be  untrue  in  fact,  and  not  believed  to  be  true  by  the 
party  making  it,  or  made  recklessly  without  any  knowl- 
edge on  the  subject,  and  for  the  purpose  of  inducing 
another  person  to  act  upon  it "  ix),  that  will  be  sufficient 
to  invalidate  a  contract  made  on  the  faith  of  such  a 
representation  (y).  Still,  such  conduct  on  the  part  of 
the  person  making  the  representation  is  clearly  not  free 
r*04Q"|  froni  moral  obliquity.  The  deceit,  ^moreover,, 
must  actually  induce  the  contracting  party  to 

(0  11  Q.  B.  D.  255 ;  52  L.  J.  (Q.  B.)  609.  See  also  2  Smith,  L.  C,  note  to 
Pasley  v.  Freeman,  p.  89,  8th  ed. 

(«)  3  Ex.  D.  238,  243;  47  L.  J.  (Q.  B.)  704,  707,  708. 

(x)  Note  to  Pasley  v.  Freeman,  2  Sm.  L.  C,  pp.  89,  90,  8th  ed. 

(y)  See  note  to  Pasley  v.  Freeman,  supra,  and  the  eases  cited  there,  also 
Joliffe  V.  Baker,  supra. 

264 


LECT.  VI.]  ILLEGAL   CONTRACTS.  248 

enter  into  the  contract.  If  he  contracted,  not  believing 
it,  or  trusting  to  his  own  judgment,  and  not  to  the  repre- 
sentation, lie  cannot  avoid  this  contract  on  account  of  the 
falsehood  {z)} 

(z)  Moens  v.  Heyworth,  10  M.  &  W.  147 ;  Shrewsbury  v.  Blount,  2  M.  &  Gr. 
475,  per  Tindal,  C.  J.  See  also  the  judgment  of  Ld.  Blackburn  in  Smith  v. 
Chad  wick,  9  App.  Cas.  187,  192. 


^  Thus  Lord  Brougham  said,  in  delivering  his  judgment  in  the  House  of 
Lords,  in  the  great  case  of  Attwood  v.  Small,  (i  Clark  &  Fin.  232,  that  the  in- 
ference he  drew  from  the  authorities  was  that  "general  fraudulent  conduct 
signifies  nothing ;  that  general  dishonesty  of  purpose  signifies  nothing ;  that 
attempts  to  overreach  go  for  nothing ;  that  an  intention  and  design  to  deceive 
may  go  for  nothing ;  unless  all  this  dishonesty  of  purjDOse,  all  this  fraud,  all 
this  intention  and  design,  can  be  connected  with  the  particular  transaction, 
and  not  only  connected  with  the  particular  transaction,  but  must  be  made  to 
be  the  very  ground  upon  which  this  transaction  took  place,  and  must  have 
given  rise  to  this  contract.  If  a  mere  general  intention  to  overreach  were 
enough,  I  hardly  know  a  contract,  even  between  persons  of  very  strict  morality, 
that  could  stand.  We  generally  find  the  case  to  be  that  there  has  been  an 
attempt  of  the  one  party  to  overreach  the  other,  and  the  other  to  overreach 
the  first,  but  that  does  not  make  void  the  contract."  It  has  therefore  been 
held,  that  mere  general  statements  of  what  property  would  thereafter  be  worth, 
aflbrded  no  ground  for  rescission  of  the  contract,  the  matter  being  fully  within 
the  vendee's  own  calculation :  Donelson  v.  Weakley,  3  Yerg.  178 ;  and  so  of 
any  other  general  representation,  open  to  examination :  Strong  r.  Peters,  2 
Hoot,  93  ;  Bell  v.  Henderson,  6  How.  311 ;  Anderson  v.  Hill,  12  Sm.  &  Mar, 
683 ;  Taylor  v.  Fleet,  4  Barb.  9o ;  Foley  v.  Cowgill,  5  Blackf  18.  But  it  must 
also  be  observed,  that  although  the  subject  of  the  false  statement  may  be  one 
within  the  vendee's  own  range  of  inquiry,  yet  if  the  statement  is  designedly 
made  in  order  to  prevent  such  inquiry,  the  rule  is  otherwise.  Thus  ir.  Dobell 
V.  Stevens,  3  B.  &  0.  ( 10  E.  C.  L.  R.)  623,  in  the  negotiation  of  the  sale  of  the 
lease  and  good-will  of  a  public-house,  a  false  representation  was  made  by  the 
vendor  with  respect  to  the  quantity  of  beer  drawn  during  a  certain  period. 
The  books  were  in  the  house,  and  it  was  part  of  the  defendant's  case  that  the 
plaintiff  might  have  had  access  to  them,  but,  notwithstanding  that  fact,  the 
Court  of  King's  Bench  held  that  an  action  for  damages  might,  under  such  cir- 
cumstances, be  sustained  ;  and  the  same  principle  will  be  found  applied  in  the 
case  of  Hunt  v.  Moore,  2  Pa.  St.  107;  Napier  v.  Elam,  6  Yerg.  108;  Camp- 
bell V.  Wittingham,  o  J.  J.  Mar.  96  ;  Buford  v.  Caldwell,  3  Mo.  477. 

It  was  said,  in  perhaps  the  most  recent  English  case  on  this  subject  (Watson 
V.  Poulson,  7  Eng.  L.  &  Eq.  588),  that  "  the  telling  an  untruth,  knowing  it  to 
be  an  untruth,  with  intent  to  induce  a  man  to  alter  his  condition,  and  his 
altering  his  condition  in  consequence,  whereby  he  sustains  damage,  fulfil  all 
the  requisites  to  support  an  action  for  deceit." 

265 


248  ILLEGAL  CONTRACTS.       '  [lECT.  VI. 

But  a  contract  induced  by  fraud  is  not  void,  but 
voidable  only  at  the  option  of  the  party  defrauded  {a). 

(a)  See  per  Cromplon,  J.,  in  Clarke  v.  Dickson,  E.  B.  &  E.  (96  E.  C.  L.  E.) 
148,  154 ;  27  L.  J.  (Q.  B.)  223,  226 ;  Oakes  v.  Turquand,  L.  R.  2  H.  of  L.  325 ; 
36  L.  J.  (Ch.)  949 ;  Urquhart  v.  Macpherson,  3  App.  Cas.  831 ;  Benjamin  on 
Sales,  Bk.  III.  c.  2,  ss.  1,  2,  pp.  385,  393,  3rd  ed. 


The  question  then  arises,  how  mucli  less,  if  anything,  than  this  will  be  suffi- 
cient for  that  purpose  ? 

The  recent  cases  in  England  (of  Collins  v.  Evans,  5  Q.  B.  (84  E.  C.  L.  R.) 
820 ;  Moens  v.  HeyWorth,  10  M.  &  W.  147  ;  Taylor  v.  Ashton,  1 1  lb.  401 ;  and 
Ormrod  r.  Huth,  14  lb.  651,  the  doctrine  of  which  cases  was  approved  in  the 
Exchequer  Chamber,  in  Barley  v.  Walford,  9  Q.  B.  (58  E.  C.  L.  R.)  197)  have 
now  decisively  settled,  in  accordance  with  reason  and  previous  authority, 
that  in  order  to  support  an  action  on  the  case  for  fraudulent  representations, 
it  is  not  sufficient  to  show  that  a  party  made  statements  which  he  did  not 
know  to  be  true,  and  which  were  in  fact  false.  Thus,  in  Evans  v.  Collins 
(when  in  the  Court  of  Queen's  Bench),  the  defendants  having  pleaded  that 
they  had  reasonable  and  probable  cause  to  believe,  and  did  believe,  their 
representation  to  be  true,  viz.,  as  to  the  identity  of  a  particular  person  who 
was  to  be  arrested  on  a  capias,  the  jury  found  for  tliem  on  that  plea,  and  when 
the  Court  (which  in  the  previous  case  of  Fuller  v.  "Wilson,  3  Q.  B.  (43  E.  C.  L. 
R.)  58  (reversed  in  the  Exchequer  Chamber,  on  anothsr  point  in  lb.  68, 1009), 
had  taken  a  different  view  from  that  entertained  by  the  majority  of  the  Court 
of  Exchequer)  entered  judgment  for  the  plaintiffs,  no7i  obstante  veredicto,  that 
judgment  was  reversed  by  the  Exchequer  Chamber,  which  held  that  the  ver- 
dict on  the  issue  raised  by  that  plea  was  material ;  and  the  propriety  of  the 
reversal  seems  to  have  been,  in  the  recent  case  of  Barley  v.  Walford,  9  Q.  B. 
(58  E.  C.  L.  R.)  206,  acquiesced  in  by  Lord  Denman,  who  had  delivered  the 
opinion  which  was  reversed.  "  We  must  admit,"  said  he,  "  the  reasonable- 
ness of  the  doctrine  there  at  length  laid  down.  For  if  every  untrue  statement 
which  produces  danger  to  another  would  found  an  action  at  law,  a  man  might 
sue  his  neighbour  for  any  mode  of  communicating  erroneous  information,  such, 
for  example,  as  having  a  conspicuous  clock  too  slow,  since  the  plaintiff  might 
be  thereby  prevented  from  attending  to  some  duty  or  acquiring  some  benefit. 
A  doctrine  creating  legal  responsibility  in  cases  so  numerous  and  so  free  from 
blame  must  be  restrained  within  some  limits."  Hence  the  result  of  tliese 
authorities  is,  that  in  order  to  make  a  party  liable  on  the  ground  of  fraud, 
there  must  be  fraud  as  distinguished  from  mere  mistake,  and  to  such  a  conclu- 
sion the  reason  and  weight  of  American  authority  also  tends :  Russell  v.  Clark, 
7  Cranch,  69 ;  Young  v.  Covell,  8  Johns.  25 ;  Hammatt  v.  Emerson,  27  Me. 
309  ;  Weeks  v.  Burton,  7  Vt.  67  ;  Ewings  v.  Calhoun,  lb.  79 ;  Lord  v.  Colley,  6 
N.  H.  99  ;  Allen  v.  Addington,  7  Wend.  10  ;  11  lb.  375 ;  Tryon  v.  Whitmarsh, 
1  Mete.  1 ;  Ball  v.  Sively,  1  Dana,  370 ;  Smitli  v.  Babcock,  2  W.  &  M.  246 ; 
and  in  a  recent  case,  which  has  appeared  while  these  sheets  are  going  through 
the  press,  the  Supreme  Court  of  the  United  States  have  distinctly  affirmed  the 

266 


LECT.  VI.]  ILLEGAL   CONTKACTS.  248 

This  being  so,  it  is  valid  until  rescinded  where  the  ri<2;hts 
of  tliird  parties  intervene  {b) ;  and  therefore  in  the  case 

(6)  See  per  Ld.  Colonsay  in  Oakes  v.  Turquand,  L.  K.  2  H.  of  L.  375 ;  36  L, 
J.  (Ch.)  976. 


same  doctrine,  after  most  of  the  late  English  decisions  referred  to  had  been 
cited  in  argument.  "  Tlie  gist  of  the  action,"  said  the  Court,  "is  fraud  in  the 
defendants,  and  damage  to  the  plainliiF.  Fraud  means  an  intention  to  deceive. 
If  there  was  no  such  intention,  if  the  party  honestly  stated  his  own  opinion, 
believing,  at  the  same  time,  that  he  stated  the  truth,  he  is  not  liable  in  the 
form  of  action,  although  the  representation  turned  out  to  be  entirely  untrue :" 
Lord  et  al.  v.  Goddard,  13  How.  198-211. 

The  position  of  a  defendant  may,  however,  be  such,  that  without  the 
utterance  of  what  is  known  to  him  to  be  an  actual  falsehood,  he  may  still  be 
liable  in  an  action  for  deceit,  viz.,  where  he  states  material  facts  as  of  his  ovm 
knowledrje  (and  not  as  mere  matter  of  opinion  or  general  assertion)  about  which 
be  has  no  knowleiUje  whatever.  Here  it  is  held  that  this  direct  wilful  statement, 
in  ignorance  of  the  truth,  is  the  same  as  the  statement  of  a  known  falseliood, 
and  will  constitute  b.  scienter :  Hazard  v.  Irwin,  18  Pick.  96;  Lobdell  v. 
Baker,  1  Mete.  193;  s.  c.  3  lb.  469;  Stone  v.  Denny,  4  lb.  158;  Medley  v. 
Watson,  6  lb.  247 ;  Daniel  v.  Mitchell,  1  Story,  172 ;  Dogget  i'.  Emerson,  3  lb. 
700;  Mason  v.  Crosby,  1  W.  &  M.  342;  Hammett  v.  Emerson,  27  Me.  308; 
Gough  V.  St.  John,  16  Wend.  646 ;  Thomas  v.  M'Cann,  4  B.  Mon.  601 ;  Buford 
V.  Caldwell,  3  Mo.  477;  Lockridge  ■!;.  Foster,  4  Scam.  570;  M'Cormick  v. 
Malin,  5  lilackf.  509  ;  Joice  v.  Taylor,  6  Gill  &  J.  54 ;  Mumoe  v.  Pritchett, 
16  Ala.  785. 

Such  a  course  of  decision  perfectly  accords  with  the  remark  of  Judge  Story, 
that  "  the  affirmation  of  what  one  does  not  know  or  believe  to  be  true,  is  equally 
in  morals  and  law  as  unjustifiable  as  the  affirmation  of  what  is  known  to  be 
positively  false;"  while  it  is  not  at  all  inconsistent  with  the  language  quoted 
from  Ormrod  v.  Huth,  that  "  if  the  representation  was  honestly  made,  and 
hdieved  at  the  time  to  be  true  by  the  party  making  it,  although  not  true  in  point 
of  fact,  it  is  not  a  fraudulent  representation."  Tlie  question  of  good  faith  is 
one,  upon  the  evidence,  for  the  jury  :  Lord  v.  CoUey,  6  N.  H.  99;  Bokee  v. 
Walker,  14  F'a.  St.  139;  and  the  ijlaintiff  can  recover,  either  by  showing  the 
positive  statement  and  the  defendant's  knowledge  of  its  falsity,  or  by  showing 
the  positive  statement  and  proving  that  the  defendant  had  not,  and  could  not 
have  had,  any  knowledge  in  the  matter.  Either  of  these  presents  a  case  of 
moral  fraud,  and  both  of  them  are  very  different  from  that  of  a  statement 
false  indeed  in  fact,  yet  honestly  believed  to  be  true. 

It  would  seem,  however,  that  even  in  the  latter  case,  there  is  no  principle 
of  law  which  forbids  a  defendant  being  made  liable  in  an  action  on  the  case 
for  neglif/ence,  whicli  entirely  meets  the  objection  entertained  by  the  English 
editor  to  the  course  adopted  by  the  latest  English  decisions.  Had  the  declara- 
tion in  Taylor  i".  Ashton,  supra,  been  framed  with  this  view,  the  plaintiff 
might,  upon  the  verdict  of  the  jury,  have  recovered.     But  volenti  nan  fit  injuria, 

267 


248  ILLEGAL  CONTRACTS.        [lECT.  VI 

of  a  sale  of  goods,  "  though  a  seller  is  induced  to  sell  by 
the  fraud  of  the  buyer,  and  though  it  is  competent  to 
the  seller,  by  reason  of  such  fraud,  to  avoid  the  con- 
tract, yet  till  he  does  some  act  to  avoid  it,  the  property 
remains  in  the  buyer,  and  if  he  in  the  meantime  has 
parted  with  the  thing  sold  to  an  innocent  purchaser,  the 
title  of  the  latter  cannot  be  defeated  by  the  original 
seller"  (c).  The  case *of  Moyce -y.  Newington, 
•-  -•  from  which  this  quotation  is  taken  is  a  good 
illustration  of  this  rule.     There,  one  Wale  purchased 

(c)  Per  Cockburn,  C  J.,  in  Moyce  v.  Newington,  4  Q.  B.  D.  32,  35 ;  48  L.  J. 
(Q.  B.)  125,  127.  See  also  per  Blackburn,  J.,  in  Lindsay  v.  Gundy,  1  Q.  B.  D. 
348,  355 ;  45  L.  J.  (Q.  B.)  381,  384. 


and  if  ilie  purchaser  knew  the  exact  situation  of  the  subject  of  the  represen- 
tation at  the  time  it  was  made  to  him,  he  cannot,  of  course,  recover  damages 
on  the  ground  of  having  been  deceived  by  it. 

Between  the  allegattofald  and  the  suppressioveri  there  is  only  this  distinction, 
that  the  non-disclosure,  in  order  to  constitute  fraud,  must  be  of  facts  which 
the  seller  was  under  obligation  to  disclose:  1  Story's  Eq.,  §  207.  Thus,  where 
provisions  are  sold  for  home  consumption  which  are  known  by  the  seller  to 
be  unsoimd,  he  will  be  liable  for  a  deceit,  upon  proof  of  his  knowledge,  in- 
dependently of  any  rejjresentation  made  by  him  :  Van  Bracklin  v.  Fonda,  12 
Johns.  468 ;  Emerson  v.  Brighara,  10  Mass.  197  ;  and  it  may  be  said,  in 
general,  that  any  course  of  dealing  calculated  to  create  a  false  impression  on 
the  purchaser,  will  amount  to  a  fraud  :  Misner  v.  Granger,  9  111.  69  ;  Young  v. 
Bumpass,  1  Freeman's  Ch.  241 ;  Bean  v.  Herrick,  12  Me.  262 ;  Early  v.  Gar- 
rett, 9  B.  &  C.  (17  E.  C.  L.  E.)  928  ;  as  wliere  the  seller  should  state  facts 
which  were  true  in  themselves,  but  so  expressed  as  to  give  the  idea  that  they 
conveyed  the  whole  truth,  while  a  material  fact  is  kept  back :  Allen  v.  Ad- 
dington,  7  Wend.  10;  s.  c.  11  lb.  75 ;  Kidney  v.  Stoddard,  7  Mete.  252. 

In  Lord  St.  Leonard,s'  latest  orginal  work,  "  The  Law  of  Property  as  Ad- 
ministered in  the  House  of  Lords,"  will  be  found  collected  the  late  important 
cases  before  that  tribunal  as  to  the  rescission  of  executed  contracts  of  real  es- 
tate on  the  ground  of  fraud.  These  are  also  noticed,  together  with  the  Ameri- 
can cases  on  the  same  subject,  in  Eawle  on  Covenants  for  Title,  ch.  xiii.,  while 
to  the  American  annotations  to  Chandelor  v.  Lopus,  1  Smith's  L.  C.  294,  and 
Pasley  v.  Freeman,  2  lb.  146,  the  student  may  be  profitably  referred  upon  the 
more  immediate  subject  of  which  this  note  has  attempted  to  treat. 

The  student  will  find  the  authorities  upon  the  subject  of  contracts  voidable 
in  equity  by  reason  of  undue  influence,  in  the  notes  to  the  case  of  Huguenin  v. 
Baseley,  2  W.  &  T.  Eq.  Ca.  37-75.  Those  upon  the  subject  of  drunkenness 
are  referred  to  infra. — B. 

268 


LECT.    VI.]  ILLEGAL   CONTRACTS.  249 

and  obtained  delivery  of  certain  sheep  from  the  defend- 
ant by  means  of  giving  a  fictitious  cheque.  Before  the 
defendant  had  done  anything  to  avoid  the  contract  with 
Wale,  the  latter  sold  them  to  the  plaintiff,  who  pur- 
chased them  bond  fide  and  for  value.  It  was  held  that 
the  defendant  was  not  entitled  to  take  away  the  sheep 
from  the  plaintiff,  as  he  had  done,  but  was  liable  to  him 
in  an  action  for  their  value  for  so  taking  them  {d). 
This  class  of  cases  is  to  be  distinguished  from  Lindsay 
V.  Cundy,  already  referred  to  (e).  There,  there  was  no 
contract  at  all.  In  the  cases  illustrating  the  rule  now 
under  discussion  there  toas  a  contract,  valid  until  set 
aside  by  the  active  intervention  of  the  party  imposed 
upon.  The  preference  given  to  the  right  of  the  inno- 
cent purchaser  seems  to  be  based  on  the  principle  that 
where  one  of  two  innocent  persons  must  suffer  from  the 
fraud  of  the  third,  the  loss  should  fall  on  the  one  who 
enabled  th.e  third  party  to  commit  the  fraud  (/) . 

*We  next  come  to  that  class  of  contracts  T-.-^cynri 
which  are  void  because  infected  with  illegality,  ^  J 
existing  not  by  the  rules  of  Common  Law,  but  under 
the  express  provisions  of  some  statute. 

Now,  with  regard  to  this  class,  I  need  hardly  say  that 
no  contract  prohibited  by  the  express  provisions  of  a 
statute  can  be  enforced  in  any  Court  of  law ;  but  it  is 
necessary  that  you  should  also  bear  in  mind  that  an  im- 
plied prohibition  is  equally  fatal  to  its  validity. 

"  Where  a  contract,"  says  Lord  Tenterden,  in  Weth- 
erell  v.  Jones  (g),  "  is  expressly  or  by  implication  forbid- 

{d)  Moyce  v.  Newington,  4  Q.  B.  D.  32 ;  48  L.  J,  (Q.  B.)  125,  See  also 
Attenborough  v.  St.  Katharine's  Dock  Co.,  3  C.  P.  D.  450 ;  Babcock  v.  Lawson, 
4  Q.  B.  D.  394;  5  lb.  284;  48  L.  J.  (Q.  B.)  524;  49  lb.  408. 

(e)  Ante,  p.  *156. 

(/)  See  the  remarks  of  Cockburn,  C.  J.,  in  Moyce  v.  Newington,  4  Q.  B.  D. 
82,  35 ;  48  L.  J.  (Q.  B.)  125,  127 ;  and  in  Babcock  v.  Lawson,  4  Q.  B.  D.  394, 
100,  401 ;  48  L.  J.  (Q.  B.)  524,  528. 

(</)  3  B.  &  Ad.  (23  E.  C.  L.  R.)  221. 

269 


250  ILLEGAL  CONTRACTS.        [lECT.  VI. 

den,  no  Court  will  lend  its  assistance  to  give  it  effect." 
Thus,  where  a  ship  which  was  to  sail  from  a  British 
port  in  North  America  to  a  port  in  the  United  King- 
dom between  the  1st  of  September  and  the  1st  of  May, 
had  part  of  her  cargo  loaded  on  the  deck,  which  was 
forbidden  by  16  &  17  Vict.  c.  107,  ss.  170,  171,  and 
172,  and  the  owners,  knowing  these  things,  insured  the 
cargo  and  the  freight,  the  whole  voyage  was  held 
illegal,  and  the  owners  were  not  permitted  to  recover 
the  insurance  {h).  The  examples  which  most  commonly 
occur  in  practice  of  implied  prohibition  are  in  cases  in 
which  an  Act  does  not  in  express  terms  enact  that  a  par- 
ticular thing  shall  not  be  done,  but  imposes  a  penalty 
*upon  the  person  doing  it.  In  such  cases  the 
L  -'  imposition  of  the  penalty  is  invariably  held  to 
amount  to  an  implied  prohibition  of  the  thing  itself  on 
the  doing  of  which  the  penalty  is  to  accrue.  In  Bart- 
lett  V.  Viner  (i),  which  is  always  referred  to  as  a  stand- 
ard authority  on  this  subject.  Holt,  C.  J.,  says,  "  Every 
contract  made  for  or  about  any  matter  or  thing  which 
is  prohibited  and  made  unlawful  by  statute,  is  a  void 
contract,  though  the  statute  does  not  mention  that  it 
shall  be  so,  but  only  inflicts  a  penalty  on  the  offender ; 
because  a  penalty  implies  a  prohibition,  though  there 
are  no  prohibitory  words  in  the  statute."^ 

(h)  Cunard  v.  Hyde,  2  E.  &  E.  (105  E.  C.  L.  R.)  1,  29  L.  J.  (Q.  B.)  6. 
These  provisions  have  been  repealed  by  39  &  40  Vict.  c.  36,  s.  2S8.  See  now 
as  to  deck  cargo,  39  &  40  Vict.  c.  80,  s.  24. 

(i)  Carth.  252 ;  Cope  v.  Rowlands,  2  M.  &  W.  157 ;  Cundell  v.  Dawson,  4  C. 
B.  (56  E.  C.  L.  R.)  396. 

1  Vining  v.  Bricker,  14  Ohio  St.  331 ;  Bemis  v.  Becker,  1  Kan.  226.  When 
a  contract  to  do  something  which  is  prohibited  by  law  has  been  executed,  the 
party  in  possession  of  the  profits  arising  out  of  the  unlawful  acts,  will  not  be 
allowed  to  set  up  the  illegality  of  the  subject-matter  of  the  contract  as  a  da- 
fence  to  an  action  of  account  thereon  :  Gilliam  v.  Brown,  43  Miss.  641.  As  to 
the  ratification  of  fraudulent  contract,  see  Pearsoll  v.  Chapin,  44  Pa.  St.  9; 
Cobb  V.  Hatfield,  46  N.  Y.  533.— s. 
270 


LECT.  VI.]  ILLEGAL    CONTEACTS.  251 

According  to  this  principle,  where  a  statute  reciting 
the  inconvenience  which  happened  by  watermen  taking 
apprentices  before  they  were  housekeepers,  enacted  that 
it  should  not  be  lawful  for  any  waterman  to  take  or 
keep  any  apprentice  unless  he  should  be  the  occupier  of 
some  house  or  tenement,  wherein  to  lodge  the  said  ap- 
prentice and  himself,  and  that  he  should  keep  such  ap- 
prentice in  the  same  house  or  tenement  wherein  he 
himself  should  lodge,  on  pain  of  forfeiting  £10  for 
every  offence,  the  Court  of  King's  Bench  decided  that 
any  contract  to  take  an  apprentice,  entered  into  by  such 
waterman  not  being  an  occupier  of  some  house  or  tene- 
ment, as  required  by  the  Act,  was  prohibited  ;  and,  con- 
sequently, that  *a  pauper  who  had  bound  him-  pj-orn-i 
self  by  indenture  to  serve  such  a  waterman  un-  '-  ^  J 
provided  with  the  required  accommodation,  and  had 
served  under  it  as  apprentice,  gained  no  settlement  by 
SQch  binding  and  service  {k).  For  the  same  reason,  a 
statute  having  required  that  with  all  coals  delivered  in 
London  above  a  certain  quantity,  the  seller  should  de- 
liver a  certain  ticket,  and  in  case  of  not  delivering  the 
ticket,  should  for  every  offence  forfeit  a  sum  not  ex- 
ceeding £20,  the  seller  of  a  quantity  of  coals,  who  had 
omitted  to  deliver  a  ticket  with  them  to  his  customer, 
was  held  not  to  be  entitled  to  sue  him  for  the  price  (I). 
The  statute  6  Anne,  c.  16,  requires  all  brokers  within 
the  City  of  London  to  be  admitted  by  the  Court  of 
Mayor  and  Aldermen,  and  provides  that  if  any  one 
shall  act  as  broker,  not  having  been  so  admitted,  he 
shall  forfeit  to  the  use  of  the  Mayor,  Aldermen,  and 
Citizens  £25  for  every  offence  (m).     It  has  been  de- 

(k)  King  V.  Inhabitants  of  Gravesend,  3  B.  &  Ad.  (23  E.  C.  L.  K.)  240. 

(l)  Cundell  v.  Dawson,  4  C.  B.  (56  E.  C.  L  R.)  376. 

(m)  This  portion  of  6  Anne,  c.  16,  is  repealed  by  57  Geo.  3,  c.  Ix,  s.  2,  and 
a  penalty  of-  £100  substituted.  But  after  the  29th  of  Sept.,  1886,  the  admission 
of  brokers  by  the  Court  of  Mayor  and  Aldermen  will  be  no  longer  necessary. 

271 


252  ILLEGAL  CONTRACTS.        [lECT.  VI. 

cided  that  a  broker  not  so  admitted  cannot  recover  his 
commission  for  work  done  by  him  as  a  broker  (?i).     In 

"•'the  case  of  a  pawnbroker  who  had  not  made 
L  -I  entries  required  by  the  Pawnbrokers'  Act,  it 
was  held  that  he  liad  not  even  a  lien  on  tlie  goods 
whereon  he  had  advanced  money,  although  the  statute 
merely  provided  that  this  neglect  should  subject  him  to 
a  penalty  (o).  And  an  agreement  made  between  a 
licensed  victualler,  who  kept  an  hotel,  to  let  the  cellar 
in  his  house,  wherein  another  was  to  retail  liquors  with- 
out any  license,  was  held  void,  although  the  statute  re- 
quiring the  license  merely  enacted  that  any  person  who 
should  sell  excisable  liquor  by  retail  without  a  license, 
should  forfeit  from  £5  to  £20  {p).  So,  too,  where  stat. 
36  Geo.  III.  c.  8Q  (q),  to  prevent  abuses  and  frauds  in 
the  packing,  weight,  and  sale  of  butter,  enacted  in  s.  2, 
that  on  every  vessel  for  packing  butter  the  maker's  name 
and  the  exact  weight  of  the  vessel  should  be  branded, 
and  imposed  a  fine  on  the  maker  in  default ;  and  in  s. 
3,  enacted  that  every  dairym.an,  farmer,  &e.,  who  should 
pack  any  butter  for  sale,  should  pack  the  same  in  ves- 
sels properly  branded  and  should  mark  his  name  on 
different  jDarts  of  the  vessel  therein  described,  and  on 

the  butter  contained  in  such  ''"vessel,  on  penalty 
'-  -'of  forfeiting  for  every  default  £5 :  it  was  held, 
that  a  sale  of  butter  in  vessels  not  properly  branded 
was  prohibited  under  the  Act,  and  consequently  that  the 
contract  of  sale  was  void,  and  the  plaintiff  in  an  action 
for  the  price  of  butter  sold  by  him  in  such  vessels  could 

See  47  &  48  Vict.  c.  3  (London  Brokers  Eelief  Act,  1884),  s.  2.     S.  3  of  the 
same  Act  repeals  as  from  the  same  date  the  penalty  of  £100. 

(n)  Cope  V.  Rowlands,  2  M.  &  W.  149  ;  Smith  v.  Lindo,  27  L.  J.  (C.  P.)  196 ; 
4  C.  B.  (N.  S.)  (93  E.  C.  L.  R.)  395 ;  27  L.  J.  (C.  P.)  335  ;  5  C.  B.  (N.  S.)  (94 
E.  C.  L.  R.)  587,  in  Ex.  Ch. 

(o)  Fergusson  v.  Norman,  5  Bing.  N.  C.  (35  E.  C.  L.  E.)  76. 

ip)  Ritchie  v.  Smith,  6  C.  B.  (60  E.  C.  L.  E.)  462. 

( q)  Now  repealed  by  7  &  8  Vict.  c.  48. 
272 


LECT.  VI.]  ILLEGAL    CONTRACTS.  254 

not  recover  (r).  The  cases  decided  upon  this  principle 
are  very  numerous,  but  these  instances  have  been  selected 
because,  while  they  illustrate  the  subject,  they  at  the 
same  time  show  how  very  many  ordinary  affairs,  if  not 
transacted  in  the  manner  prescribed  by  law,  may  be  for- 
bidden no  otherwise  than  by  the  imposition  of  a  pen- 
alty.^ 

Before  leaving  this  subject,  it  will  be  convenient  to 
advert  to  a  distinction,  in  cases  of  this  sort,  between 
acts  which  are  prohibited  for  the  public  advantage,  and 
such  as  are  prohibited  for  purposes  of  revenue ;  for  it 
has  been  sometimes  thought,  that,  in  the  latter  class  of 
instances,  the  only  consequence  is  to  make  the  person 
committing  such  acts  liable  to  the  penalty,  and  not  to 
make  his  contract  unavailable  (s).  But,  it  may  safely 
be  laid  down,  notwithstanding  some  dicta  apparently  to 
tlie  contrary,  that,  if  the  contract  be  rendered  illegal, 
it  can  make  no  difference,  in  point  of  law,  whether  the 
statute  which  makes  it  so  had  in  *view  the  pro-  porr--] 
tection  of  the  revenue  or  any  other  object  [t). 
Tlie  sole  question  is  whether  the  statute  means  to  jDro- 
hibit  the  contract.  Thus,  where  the  2oth  and  26tli 
sections  of  the  Excise  License  Act,  6  Geo.  IV.  c.  81, 
subject  to  penalties  any  manufacturer  of,  or  dealer  in, 
or   seller   of  tobacco,   who   shall   not  have   his   name 

(r)  Forster  v.  Tavlor,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  887. 
(s)  Forster  v.  Taylor,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  887 ;  Taylor  v.  Crowland 
Gas.  Co.,  23  L.  J.  (Ex.)  254;  10  Ex.  293. 
(0  Cope  V  Rowlands,  2  M.  &  W.  149. 

1  See  Buxton  v.  Hamblen,  32  Me.  448 ;  Boutwell  v.  Foster,  24  Vt.  485 ; 
Beman  v.  Tugnot,  5  Sand.  153. — s. 

See  also  Woods  v.  Armstrong,  54  Ala.  150;  Commonwealth  v.  Shattuck,  4 
Cush.  141 ;  Smith  v.  Arnold,  106  Mass.  435  ;  Prescott  v.  Battersly,  119  Mass. 
285 ;  People  v.  Albany,  11  Wend.  539  ;  Griffith  v.  Wells,  3  Den.  226  ;  Roby 
V.  West,  4  N.  H.  289 ;  Morris  Run  Coal  Cx).  v.  Barclay  Coal  Co.,  68  Pa.  St. 
173;  Fowler  t.  Scully,  72  lb.  456  ;  Thorne  z;.  Ins.  Co.,  80  lb.  15;  Elkins  v. 
Parkhurst,  17  Vt.  105. 

18  273 


255  ILLEGAL  CONTRACTS.        [lECT.  VI. 

painted  on  his  entered  premises  in  manner  therein 
mentioned,  or  who  shall  manufacture,  deal  in,  retail,  or 
sell  tobacco,  without  the  license  required  for  that  pur- 
pose, it  was  considered  that  these  enactments  do  not 
avoid  a  contract  of  sale  of  tobacco  made  by  a  manu- 
facturer or  dealer  who  has  not  complied  with  the  requi- 
sites of  these  sections :  their  effect  is  merely  to  impose 
a  penalty  on  the  offending  party  for  the  benefit  of  the 
revenue.  "The  question  is,"  said  Alderson,  B. — "Does 
the  Legislature  mean  to  prohibit  the  act  done,  or  not? 
If  it  does,  whether  it  be  for  the  purposes  of  revenue 
or  otherwise,  then  the  doing  of  the  act  is  a  breach  of 
the  law,  and  no  action  can  arise  out  of  it.  But  here 
the  Legislature  has  merely  said,  that  where  a  party 
carries  on  the  trade  or  business  of  a  dealer  in  or  seller 
of  tobacco,  he  shall  be  liable  to  a  certain  penalty  if 
the  house  in  which  he  carries  on  the  business  shall  not 
have  his  name,  &c.,  painted  on  it,  in  letters  publicly 
visible  and  legible,  and  at  least  an  inch  long,  and  so 
forth.  He  is  liable  to  the  penalty,  therefore,  by 
po-r^-i  ^carrying  on  the  trade  in  a  house  in  which 
these  requisites  are  not  complied  with ;  and 
there  is  no  addition  to  his  criminality  if  he  makes  fifty 
contracts  for  the  sale  of  tobacco  in  such  a  house.  It 
seems  to  me,  therefore,  that  there  is  nothing  in  the  Act 
of  Parliament  to  prohibit  every  act  of  sale,  but  that  its 
only  effect  is,  to  impose  a  penalty  for  the  purpose  of 
the  revenue  on  the  carrying  on  of  the  trade  without 
complying  with  its  requisites"  {v). 

Now  the  general  principle  uj^on  which  all  cases  of 
statutable  illegality  depend,  being  as  above  laid  down,  it 
is  necessary  that  you  should  bear  in  mind  a  practical 
distinction  which  exists  between  this  class  of  contracts — 
contracts  I  mean,  forbidden  by  the  express  or  implied 

iu)  Smith  V.  Mawhood,  14  M.  &  W.  452. 

274 


LECT.  VI.]  ILLEGAL    CONTRACTS.  256 

enactment  of  some  statute — and  another  class,  in  wliich 
the  contract  itself  does  not  violate  the  statute,  but  some 
incidental  illegality  occurs  in  carrying  it  into  effect. 
In  these  latter  cases  the  contract  is  good,  and  may  be 
made  the  subject-matter  of  an  action,  notwithstanding 
the  breach  of  the  law  which  has  occurred  in  carrying  it 
into  effect.^ 

The  best  mode  of  explaining  this  is  by  an  example. 
In  Wetherell  v.  Jones  {x),  a  rectifier  of  spirits  brought 
an  action  against  a  confectioner  to  recover  the  jDrice  of 
spirits  sold  and  delivered  to  *him.  The  defence  ^^,^^„-. 
relied  upon  was  illegalit3%  It  appears,  that, 
under  the  Excise  Acts,  a  rectifier  or  distiller,  wdien  he 
sends  out  spirits,  is  bound  to  send  with  them  a  permit 
truly  specifj^ing  their  strength.  The  plaintiff  had  sent 
a  permit  but  it  did  not  specify  the  true  strength ;  and 
the  defendant  relied  on  this  violation  of  the  statute  as 
an  avoidance  of  the  contract.  But  the  Court  held  that 
the  illegality  was  not  in  tbe  contract  to  sell  the  spirits, 
but  in  the  subsequent  act  of  removing  them  without  a 
proper  permit,  and,  therefore,  that  an  action  was  main- 
tainable upon  the  contract ;  and  Lord  Tenterden^s  judg- 
ment sets  the  distinction  in  a  very  clear  light :  "  We 
are  of  opinion,"  said  his  lordship,  "  that  the  irregularity 

(z)  3  B.  &  Ad.  (23  E.  C.  L.  R.)  221.    See  also  Smith  v.  Mawhood,  supra. 


'  The  mere  knowledge  on  the  part  of  the  lender,  that  the  borrower  of  the 
legal  currency  of  another  State  intended  to  use  it  in  the  State  of  New  "York, 
where  its  circulation  was  prohibited,  would  not  so  far  vitiate  a  contract  made 
in  the  State  where  it  would  be  valid,  as  to  authorize  the  courts  of  the  latter 
State  to  refuse  to  enforce  it:  Merchants'  Bank  v.  Spalding,  12  Barb.  302.  A., 
not  owning  any  Canton  stock,  employed  B.,  a  bi-oker,  who  owned  some,  to  sell 
for  him  two  hundred  shares  at  sixty-six  dollars  a  share,  deliverable  at  B.'s 
ojition,  at  any  time  within  thirty  days,  and  deposited  with  B.  $750  to  protect 
him  against  loss.  The  broker  contracted  to  sell  at  that  rate,  and  notified  A., 
and  within  the  term  limited,  bought  and  delivered  stock  in  execution  of  the 
contract.  Held,  that  the  money  was  advanced  to  be  used  for  an  illegal  pur 
pose,  and  could  not  be  recovered  back  :  Staples  v.  Gould,  5  Sand.  411. — s. 

275 


257  ILLEGAL  CONTEACTS.        [lECT.  VI. 

of  the  permit,  though  it  arises  from  the  plaintiff 's  own 
fault,  and  is  a  violation  of  the  law  by  him,  does  not  de- 
prive him  of  the  right  of  suing  upon  a  contract,  which 
is  in  itself  perfectly  legal  (y),  there  having  been  no 
agreement,  express  or  implied,  in  that  contract,  that 
the  law  should  be  violated  by  such  improper  delivery. 
AVhere  a  contract  which  a  plaintiff  seeks  to  enforce  is 
exj^ressly,  or  by  implication,  forbidden  by  the  statute 
or  common  law,  no  Court  will  lend  its  assistance  to 
give  it  effect ;  and  there  are  numerous  cases  in  the 
books  in  which  an  action  on  a  contract  has  failed,  be- 
r:>.np:Q-\  cause  either  the  consideration  for  the  ^j^romise 
or  the  act  to  be  done  was  illegal,  as  being 
against  the  express  provisions  of  the  law  or  contrary 
to  justice,  morality,  and  sound  policy.  But  where  the 
consideration  and  the  matter  to  be  performed  are  both 
legal,  we  are  not  aware  that  a  plaintiff  has  ever  been 
precluded  from  recovering  by  an  infringement  of  the 
law  not  contemplated  by  the  contract  in  the  perform- 
ance of  something  to  be  done  on  his  part." 

Where,  moreover,  a  contract  is  to  do  a  thing  which 
cannot  be  performed  without  a  violation  of  the  law,  it 
is  void  whether  the  parties  knew  the  law  or  not.  But 
in  order  to  avoid  a  contract  which  can  be  legally  per- 
formed, on  the  ground  that  there  was  an  intention  to 
perform  it  in  an  illegal  manner,  it  is  necessary  to  show 
that  there  was  the  wicked  intention  to  break  the 
law  (2:).  And  a  foreigner  who  sold  and  delivered  goods 
abroad  to  a  British  subject,  knowing  at  the  time  the 
buyer  intended  to  smuggle  them  into  this  country,  was 
allowed  to  recover  the  price  here ;  not  merely  on  the 
ground  that  the  subject  of  a  foreign  country  is  not  bound 

(1/)  It  seems,  that,  by  a  subsequent  statute,  he  would  in  this  case  be  deprived 
of  the  right  of  suing :  2  Will.  4,  c.  16,  ss.  11,  12. 

{z)  Waugh  V.  Morris,  L.  B.  8  Q.  B.  202,42  L.  J.  (Q.  B.)  67. 

276 


LECT.  VI.]  ILLEGAL   CONTKACTS.  258 

to  pay  allegiance  or  respect  to  tlie  revenue  laws  of  this, 
but  also  because  the  plaintiff  took  no  actual  part  in  the 
illegal  act,  and  it  was  not  a  contract  of  which  the  smug- 
gling was  an  essential  part,  for  the  buyer  might  have 
changed  his  mind  the  next  day  (a). 

*With  regard  to  the  distinction  of  which  I  r:!:of^qi 
have  been  speaking  [viz.,  where  an  incidental 
illegality  occurs],  I  will  make  but  one  further  observa- 
tion, namely,  that  it  would  ajDply  to  cases  of  common 
law  as  well  as  statutable  illegality ;  but  I  have  spoken 
of  it  under  the  head  of  statutable  illegality,  because  I 
do  not  remember  any  decided  case  arising  upon  a  ques- 
tion as  to  illegality  at  common  law  which  would  aptly 
illustrate  it.  I  can,  however,  put  such  a  case  without 
difficulty.  Suppose,  for  instance,  A.  employs  B.,  a 
builder,  to  repair  the  front  of  his  house,  and  B.,  in  so 
doing,  erects  an  indictable  nuisance  in  the  public  street, 
still,  as  the  contract  to  repair  the  house  is  legal,  and  the 
erection  of  the  nuisance  in  so  doing  was  not  contem- 
plated by  the  agreement,  B.  might  recover  for  the  rej^airs 
which  he  had  executed.  But  it  would  be  otherwise  if  it 
had  been  made  part  of  the  agreement,  that  the  repairs 
should  be  performed  by  means  of  the  erection  of  the 
nuisance ;  for  there  the  illegality  would  have  entered 
into  and  formed  part  of  the  contract  (b)} 

(a)  Pellecat  v.  Angell,  2  Cr.  M.  &  K.  311. 

(6)  As  to  contracts  of  which  performance  has  become  illegal  after  the 
making,  see  Brown  v.  Mayor  of  Loudon,  3U  L.  J.  (C.  P.)  225;  31  L.  J.  (C.  P.) 
280,  in  Ex  Ch. 


*  The  cases  upon  this  subject  seem  to  require  a  somewhat  fuller  notice.  In 
Rex  V.  Somerby,  cited  bj'  the  lecturer,  a  pauper  apprentice  was  moved,  by 
reason  of  illness,  from  the  parish  of  Melton  Mowbray,  to  that  of  Somerby, 
where  he  resided  forty  days,  during  which  time  he  was  employed  in  selling 
lottery  tickets,  and  it  was  held  that  he  had  gained  a  settlement  in  the  latter 
parish,  notwithstanding  the  unlawful  act  in  which  he  had  been  engaged," 
though  it  was  suggested  that  if  the  master  and  apprentice  had  conspired  to- 

277 


259  ILLEGAL  CONTRACTS.        [lECT.  "VI. 

Now,  sucli  being  the  effect  of  illegality  created  by 
statute,  in  avoiding  an  agreement  tainted  with  it,  and 


gether,  and  moved  thither  for  that  purpose,  the  case  might  have  been  differ- 
ent :  and  this  decision  is  perfectly  reconcilable  with  principle  and  with  all  the 
authorities.  But  in  Pellecat  v.  Angell  it  was  was  held  that  a  foreigner  selling 
and  delivering  goods  to  a  British  subject  could  recover  their  price,  although  he 
knew  at  the  time  of  the  sale  that  the  buyer  intended  to  smuggle  th?m  into 
England,  and  the  decision  (which  was  in  accordance  with  the  previous  case  of 
Hodgson  w.  Temple,  5  Taunt.  (1  E.  C.  L.  R.)  181,  except  that  the  case  went 
farther,  both  parties  being  English),  to  some  extent,  was  rested  on  the  distinc- 
tion taken  in  Biggs  v.  Lawrence,  3  T.  R.  454,  between  merely  knowing  of  the 
illegal  act,  and  being  a  party  thereto.  That  case  decided  that  where  a  smug- 
gler bought  brandy  in  Guernsey,  and  the  vendor  packed  it  in  ankers  in  pre- 
paration for  smuggling,  he  could  not  recover  the  price  of  it,  because  he  was 
aiding  in  the  breach  of  the  revenue  laws,  while  in  Ilolman  v.  Johnson,  Cowp. 
342,  where  the  vendor,  a  foreigner,  knew  of,  but  did  not  actively  participate 
in  the  smuggling,  he  was  held  entitled  to  recover.  Lord  Abinger,  however, 
in  delivering  the  opinion  in  Pellecat  v.  Angell,  did  not  rely  wholly  on  this 
distinction  between  mere  knowledge  and  participation,  but  to  a  great  extent 
based  his  opinion  upon  the  fact  of  the  law  which  was  infringed,  being  a 
foreign  one  to  the  plaintiff.  "  It  is  perfectly  clear,"  said  he,  "  that  where 
])arties  enter  into  a  contract  to  contravene  the  laws  of  their  own  country,  such 
a  contract  is  void ;  but  it  is  equally  clear,  from  a  long  series  of  cases,  that  the 
subject  of  a  foreign  country  is  not  bound  to  pay  allegiance  or  respect  to  the 
revenue  laws  of  this,  except  indeed  that  when  he  comes  within  the  act  of 
breaking  them  himself,  he  cannot  recover  here  the  fruits  of  that  illegal  act. 
But  there  is  nothing  illegal  in  merely  knowing  that  the  goods  he  sells  are  to 
be  disposed  of  in  contravention  of  the  fiscal  laws  of  another  country."  Such 
a  course  of  reasoning  has  been,  however,  seriously  questioned  by  Mr.  Justice 
Story  in  his  treatise  on  the  Conflict  of  Laws  (§  254,  note),  who  asks,  if  a 
Frenchman  could  be  allowed  to  recover,  in  England,  the  price  of  poison 
sold  in  France  for  the  avowed  purpose  of  poisoning  the  Queen.  But  it  may  be 
remarked  of  the  English  cases  that  for  some  time,  and  until  a  very  recent 
period,  contracts  connected  with  a  violation  of  the  revenue  laws,  were  rather 
less  severely  construed  than  those  in  violation  of  other  statutory  provisions 
(see  some  of  the  cases,  siiprn,  p.  ^19,  note  2),  and  Pellecat  v.  Angell,  which 
was  decided  in  1835,  may,  so  far  as  concerns  the  above  reasons,  for  the  decision, 
be  classed  with  these  cases. 

But  upon  the  other  ground,  the  line  of  distinction  between  knowledge  and 
participation,  or  rather  between  what  is  and  what  is  not  participation,  is  at 
times  a  difficult  one,  and  it  is  certain  that  the  older  cases  have  sanctioned  re- 
coveries in  instances  where  they  would  now  perhaps  be  denied.  Thus,  in 
Faikney  v.  Reynous,  4  Burr.  20G9,  the  plaintiff  and  one  Richardson  were 
jointly  concerned  in  transactions  forbidden  by  the  act  "to  prevent  the  in- 
famous practice  of  stockjobbing"  (7  Geo.  2,  c.  8),  and  the  plaintiff  having 
paid  the  whole  of  the  loss  sustained  by  the  failure  of  the  operation,  the  Court 

278 


LECT.  VI.]  ILLEGAL   COXTEACTS.  259 

such  being  the  distinction  between  illegality  stipulated 
for — contemplated  by  the  contract — and  illegality  oc- 


(Lord  Mansfield,  C.  J.)  held  that  a  suit  could  be  maintained  upon  a  bond 
given  to  the  plaintiff  by  the  defendants  to  secure  the  repayment  of  Richard- 
son's proportion  of  the  loss,  as  the  illegality  did  not  enter  into  this  new  trans- 
action; and  in  the  subsequent  case  of  Petrie  v.  Hannay,  3  T.  R.  418,  the  facts 
and  the  decision  were  the  same  way.  So,  it  was  formerly  held  that  money  lent 
to  pay  a  gambling  debt  might  be  recovered,  though  the  money  lost  could  not: 
Robinson  v.  Bland,  2  Burr.  1077 ;  Barjeau  v.  Walmsley,  Str.  1249 ;  Alcin- 
brook  V.  Hall,  2  Wils.  309 ;  and  these  cases  were  approved  in  Farmer  v.  Rus- 
sell, 1  B.  <*i:  P.  299,  though  the  decision  in  that  case  was  on  a  different  ground, 
viz.,  that  one  who  had  received  money  for  the  use  of  a  party  engaged  in  am 
illegal  contract  could  not  defend  in  an  action  for  money  had  and  received  on 
the  ground  of  illegality,  he  being  considered  in  the  light  of  a  stakeholder  (as 
to  which  see  infra).  But  a  class  of  cases  soon  followed,  in  which  the  authority 
of  Faikney  v.  Reynous,  and  Petrie  v,  Ilannaj-,  was  sometimes  distinguished, 
but  more  frequently  queslioned:  Booth  v.  Hodgson,  6  T.  R.  405;  Lightfoot  v. 
Tenant,  1  B.  &  P.  551  (where  Eyre,  C.  J.,  put  the  case  of  a  druggist  who 
should  sell  arsenic  to  one  who  he  knew  was  going  to  poison  his  wife  with  it) : 
Aubert  v.  Maze,  2  B.  &  P.  371,  Eldon,  C.  J.;  Langton  v.  Hughes,  1  M-  &  S. 
593  (where  it  was  held  that  one  who  sold  drugs  to  a  brewer,  knowing  that  he 
would  use  them  to  adulterate  ale  witlu  contrary  to  a  statute,  could  not  recover, 
though  it  was  not  proved  that  they  had  been  so  used) :  Webb  v.  Brooke,  3 
Taunt.  12;  Ex  parte  Mather,  3  Ves.  Jr.  373;  Ex  parte  Daniels,  14  lb.  192; 
Gas  Light  Co.  v.  Turner,  6  Bing.  N.  C.  (37  E.  C.  L.  R.)  324 ;  and  in  Cannan 
t'.  Br3'ce,  3  B.  &  Aid.  (5  E.  C.  L.  R.)  179,  two  partners  entered  into  an  illegal 
stockjobbing  transaction,  by  which  a  heavy  less  was  sustained,  which  was  paid 
by  a  sum  of  money  lent  them  by  Bryce,  the  defendant,  who,  as  the  jury  found, 
was  not  a  partner  in  the  stockjobbing  transaction.  In  consideration  of  this 
loan,  which  had  been  only  secured  by  a  bond,  one  of  the  partners  assigned  to 
the  defendant  three  cargoes  of  vessels  and  soon  after,  a  commission  of  bank- 
ruptcy issued  against  both  of  them,  and  the  assignees  in  bankruptcy  were  held 
entitled  to  recover  the  proceeds  of  these  cargoes  from  the  defendant.  "If," 
said  Abbott,  C.  J.,  who  delivered  the  opinion  of  the  Court,  "  tlie  defendant 
acted  unlawful!}^  in  lending  his  money  to  the  bankrupts,  he  could  ncft  have 
sued  them  for  the  recovery  of  payment,  because  no  suit  can  be  maintained  upon 
an  unlawful  act ;  and  if  recovery  could  not  be  enforced  at  law  upon  the  con- 
tract of  lending,  neither  could  recovery  be  enforced  upon  a  bond  given  for 
the  performance  of  that  contract;"  nor,  consequently,  upon  the  assignments 
which  were  to  secure  the  bond ;  and  in  M'Kinnell  r.  Robinson,  3  M.  &  W.  43-5, 
this  case  was  approved,  and  it  was  held,  in  opposition  to  Alcinbrook  v.  Hall, 
that  money  lent  to  play  hazard  with  could  not  be  recovered  back. 

On  this  side  of  the  Atlantic,  the  authority  of  the  older  and  overruled  Eng- 
lish eases  has,  however,  been  in  many  instances  recognized  and  affirmed. 
Thus,  in  Carsan  v.  Rambert,  2  Bay,  500,  it  was  held  (on  the  authority  of 
Robinson  v.  Bland),  that  the  value  of  a  horse  lent  to  stake  at  a  gambling  table 

279 


259  ILLEGAL  CONTEACTS.        [lECT.  VI. 

curing  incidentally  during  tlie  course  *of  its 
performance,  I  will  proceed,  as  I  did   when 


could  be  recovered  hy  the  lender,  from  the  borrower.  But  the  principal  case 
is  perhaps  Armstrong  v.  Toler,  4  Wash.  C.  C  297,  and  11  W^heat.  258,  where 
Armstrong  and  others  contrived,  during  the  war,  a  plan  to  smuggle  into  the 
country  goods  consigned  to  Toler,  and  on  their  seizure  at  the  port  of  destina- 
tion, Toler  became  security  to  the  government  to  abide  tlie  event  of  the  suit, 
and  delivered  to  Armstrong  his  proportion  of  the  goods  on  his  promise  of  re- 
payment, in  case  they  should  eventually  be  condemned.  The  goods  were  con- 
demned, and  Toler  paid  tlie  amount  of  their  appraised  value,  and  in  suit 
brought  by  him  against  Armstrong,  it  was  objected  that  the  contract  was  void, 
as  founded  on  an  illegal  consideration ;  but  the  court  below  charged  that  the 
subsequent  independent  contract,  founded  on  a  new  consideration  (viz.,  that 
of  the  delivery  of  the  goods  to  Armstrong),  was  not  contaminated  by  the 
illegal  importation,  although  it  was  known  to  Toler  when  the  contract  was 
made,  provided  the  latter  had  no  interest  and  participation  in  the  importation, 
and  this  was  left  as  a  fact  to  the  jury,  who  found  that  he  had  no  such  partici- 
pation, and  tlie  judgment  entered  on  the  verdict  was  affirmed  on  error,  upon 
the  authority  of  Faikney  v.  Eeynous,  and  Petrie  v.  Hannay  ;  and  to  the  same 
effect  are  Smith  V.  Barstow,  2  Dongl.  163;  Leavitt  v.  Blatchford,  5  Barb.  9; 
Hook  V.  Gray,  6  lb.  398;  Thomas  v.  Brady,  10  Pa.  St  109;  Phalen  v.  Clark, 
19  Conn.  432  (some  of  which  cases  also  recognized  as  authority  those  of  Faik- 
ney V.  Reynous,  and  Petrie  v.  Hannay) ;  and  in  Cheney  v.  Duke,  10  Gill  &  J. 
11,  it  was  thought  by  the  court  to  be  abundantly  settled  that  the  knowledge 
of  the  vendor  that  the  subject  of  the  sale  was  to  be  illegally  employed,  could 
not  defeat  his  recovery  of  the  contract  price ;  and  in  an  action  brought  for  the 
purchase-money  of  a  slave,  bought  for  the  purpose  of  exportation  contrary  to 
a  local  statute,  the  plaintiff"  was,  notwithstanding  his  knowledge  of  the  unlaw- 
ful exportation  was  proved,  held  entitled  to  recover,  on  the  ground  that  noth- 
ing was  done  by  him  in  furtherance  of  the  illegal  design. 

In  Mlntyre  v.  Parks,  3  Mete.  208,  a  mortgagee  was,  on  the  authority  of 
Holnian  v.  Johnson,  mpra,  held  entitled  to  recovery,  though  the  considera- 
tion of  the  mortgage  was  lottery  tickets,  whose  sale  was  prohibited  in  IMassa- 
chusetts,  on  the  ground  that  the  contract  was  made  in  New  York,  where  such 
sales  were  valid,  and  notwithstanding  the  mortgagee  knew  that  they  were  in- 
tended to  be  sold  in  the  former  State,  in  violation  of  its  laws;  while  in  Scott 
V.  Duffv',  14  Pa.  St.  18,  money  lent  in  New  Jersey  to  be  bet  upon  the  presiden- 
tial election,  was  allowed  to  be  recovered  in  Pennsylvania,  on  the  ground  that 
there  was  no  evidence  that  such  a  bet  was  illegal  in  New  Jersey  In  Steele 
V.  Curie,  4  Dana,  387,  the  following  remarks  were  made  upon  this  subject  by 
Eobertson,  C.  J.,  after  referring  to  the  different  opinions  which  have  been 
expressed : — 

"  We  feel  that  it  may  be  but  proper  to  suggest,  in  passing,  that  we  would 

be  inclined  neither  to  concur  with,  nor  to  dissent  from,  the  doctrine  of  either 

party,  in  extemo  and  altogether,  ytithout  limitations  or  qualification;  but  should 

rather  incline  to  the  conclusion  that,  although,  as  we  are  disposed  to  think,  a 

280 


LECT.  VI.]  ILLEGAL   CONTEACTS.  260 

speaking  of  illegality  at  common  law,  to  specify  some 
of  the  instance  of  most  ordinary  practical  occurrence, 


simple  knowledge,  by  a  vendor,  of  the  fact  that  a  vendee  buys  an  article  for 
tlie  purpose  or  with  an  intention  of  using  it  in  violation  of  a  public  law.  or  a 
principle  of  moral  rectitude,  may,  in  strong  and  flagrant  cases,  such  as  that 
supposed  by  Chief  Justice  Eyre,  be  a  sufficient  reason  for  withliolding,  from 
either  party,  the  aid  of  the  law  for  enforcing  tlie  contract,  yet  there  may  be 
cases  of  a  lighter  shade  or  less  degree  of  enormity,  in  which  the  same  fact 
might  not,  alone,  be  entitled  to  the  same  effect:  and  in  the  latter  class,  we 
would  be  inclined  to  place  the  beer  case  decided  by  Lord  Ellenborough.  And 
the  reason  wliy  we  should  be  disposed  to  make  any  discrimination  in  conse- 
quence of  the  color  or  degree  of  the  transgression  contemplated  by  the  buyer 
and  merely  understood  by  the  seller,  and  why,  also,  we  are  inclined  to  agree 
with  Chief  Justice  Eyre  to  some  extent,  is  just  because  it  does  seem  to  us, 
that  no  one  can  sell  a  commodity,  knowing  that  the  buyer  intends  to  use  it 
for  any  purpose  so  flagitious  as  that  of  murder  or  treason,  or  other  flagrant 
violation  of  the  fundamental  rights  of  man  or  of  society,  without  betraying 
such  a  degree  of  turpitude  and  recklessness  as  to  implicate  him,  as  a  volun- 
tary and  active  participant  in  the  unlawful  design,  and,  as  therefore,  quantum 
in  illo,  willing  and  instigating  a  crime,  which  it  is  the  civil  duty  of  every  citizen 
to  oppose ;  and  that  the  like  knowledge  alone,  of  the  buyer's  purpose  of  un- 
lawful appropriation  or  use,  would  not  necessarily  lead  to  the  like  deduction, 
as  to  the  motive  or  conduct  of  tlie  seller,  in  every  case  of  inferior  degree, — 
as  the  beer  case ;  the  case  of  a  purcliase  of  an  article  with  the  intention  of 
again  making  a  fraudulent  sale  or  use  of  it ;  the  case  of  a  loan  of  money  to  a 
person  who  borrows  for  the  purpose  of  re-loaning  to  a  stranger  at  illegal 
interest;  the  case  of  a  sale  of  merchandise  by  a  wholesale  merchant,  in  the 
regular  course  of  his  business,  to  one  who,  when  he  buys,  intends  to  smuggle 
it  into  a  foreign  port,  without  paying  the  legal  and  accustomed  duties;  and 
many  other  cases  of  a  similar  kind,  in  which  a  citizen  may  be  neutral  with- 
out being  guilty  of  incivism,  or  of  any  intentional  participation  in  the  un- 
lawful design.  In  all  such  cases,  it  would  seem  to  us,  that  in  a  commercial, 
busy,  and  enterprising  age,  the  law  should  not  attempt  to  establish  a  morality 
60  pure,  and  exact,  and  vigilant,  as  that  which  would  make  it  the  legal  duty 
of  every  seller  of  every  vendible  thing,  to  become  a  casuist  or  censor,  so  far 
as  to  make  him  responsible  for  the  known  motives  of  the  buyer,  and  an  active 
and  guilty  co-operator  with  him  in  his  contemplated  violation  of  law,  of 
principle,  or  of  justice." 

The  later  English  cases  were,  however,  cited  with  approbation,  and  fol- 
lowed in  Perkins  v.  Savage,  15  Wend.  418  ;  Branch  Bank  v.  Crocheron,  5  Ala. 
25P  ;  Wooten  v.  Miller,  7  Sm.  &  M.  386,  and  Duncan  v.  Cox,  6  Blackf, 
270.— R. 

See  also  Green  v.  Collins,  3  CliflT.  494  ;  Brunswick  v.  Valleau,  50  Iowa,  120, 
"Wilson  V.  Stratton,  47  Me.  120;  Savage  v.  Mallory,  4  Allen,  492;  AValan  v. 
Kerby,  99  Mass.  1;  Adams  v.  Couillard,  102  Mass.  167;  Walker  v.  Jeiieries, 
45  Miss.  100  ;  Kindskopf  v.  De  Kuyter,  39  Mich.  1 ;  Hill  t.  Spear,  50  N.  H. 

281 


260  ILLEGAL  CONTRACTS.        [lECT.  VI. 

in  whicli  the  Legislature  has,  by  express  provision, 
rendered  particular  contracts  illegal  [or  void]. 

The  first  (c)  example  to  which  I  shall  advert  arises 
on  contracts  by  way  of  gaming  or  wagering,  and  which 
now  arc  void  and  not  illegal  {d).  The  Acts  against 
Gaming  were  formerly  exceedingly  complex  and  trouble- 
some ;  but  tlie  law  has  been  much  simplified  by  stat.  8 
&  9  Vict.  c.  109. 

Before  the  passing  of  that  statute  the  first  Act  to  be 
noticed  was  that  of  16  Car.  II.  c.  7,  s.  3  of  which 
enacted  that  if  any  one  should  play  at  any  pastime  or 
game,  by  gaming  or  betting  upon  those  who  game,  and 
should  lose  more  than  the  sum  of  £100  on  credit,  he 
should  not  be  bound  to  pay,  and  any  contract  to  do  so 
should  be  void. 

The  9th  Anne,  c.  14  (the  principal  enactment),  pro- 
vided in  sect.  1,  that  all  securities  for  money  or  any 
other  valuable  thing  won  by  gaming  or  playing  at  cards, 
pi=9ri1  ^^^®'  ^^^^^^'  bowls,  or  other  game  *whatever,  or 
by  betting  on  those  who  game,  or  for  money 
lent  for  such  gaming  or  betting,  or  lent  to  gamesters  at 
the  place  where  they  are  playing,  shall  be  void. 

And  the  2nd  section  exacted  that  any  person  who 
shall  at  a  sitting  lose  the  sum  or  value  of  £10  might 
recover  back  again  within  three  months  ;  and  if  he  did 

(c)  In  the  earlier  editions  the  first  example  was  that  of  contracts  void  by 
usury,  but  the  usury  laws  having  lieen  swept  away  (see  per  Kindersley,  V.  C, 
in  Bond  v.  Bell,  27  L.  J.  (Ch.)  233,  235)  by  17  &  18  Vict.  c.  90,  which  came 
into  force  on  the  10th  Aug.,  1854,  it  seems  undesirable  to  mention  them  fur- 
ther here. 

(d)  Beeston  v.  Beeston,  1  Ex.  D.  13 ;  45  L.  J.  (Q.  B.,  etc)  230 ;  Eead  v. 
Anderson,  10  Q.  B.  D.  100  ;  52  L.  J.  (Q.  B.)  214. 


253 ;  Scherraerhorn  v.  Talman,  4  Kern.  93 ;  Powell  v.  Smith,  66  N.  C.  401 ; 
Williams  v.  Carr,  80  lb.  294;  Wallace  v.  Lark,  12  S.  C.  576;  Henderson  v. 
Waggoner,  2  Lea,  133;  Kottwitz  v.  Alexander,  34  Tex.  689;  Gaylord  t. 
Soragen,  32  Vt.  110. 

282 


LECT.  VI.]  ILLEGAL   CONTRACTS.  261 

not,  any  other  person  might,  together  with  treble  the 
value — half  for  himself,  and  half  for  the  poor  of  the 
parish. 

Now  you  will  observe  that  under  these  two  Acts 
securities  for  money  lost  at  gaming,  or  by  betting  on 
the  gamesters,  or  for  money  lent  to  them  to  game  with, 
were  illegal. 

And  you  will  further  observe  that,  even  if  no  security 
were  given,  but  the  loser  paid  in  cash,  still,  if  the  sum 
lost  amounted  to  £10,  it  might  be  recovered  back 
again  (e). 

Now  a  horse-race  is  a  game  within  the  meaning  of 
these  Acts  of  Parliament,  as  you  will  find  laid  down  in 
several  cases  (/)  ;  and  therefore,  if  the  law  rested  upon 
these  statutes,  all  losses  above  £10  on  any  such  race 
would  be  recoverable  back  by  the  loser,  and  would  put 
the  winner  in  danger  of  the  penalties  of  the  statute  of 
Anne,  and  securities  for  *the  payment  of  any  ^^>.c,ncy•^ 
such  losses  would  be  void.  But  it  was  thought 
that  horse-racing,  confined  within  due  limits,  had  a 
tendency  to  improve  the  breed  of  horses,  and  thereby 
promote  the  interests  of  the  country  at  large.  Acts  of 
Parliament  were  therefore  passed,  providing  for  this 
j)articular  object,  and  excepting  such  races,  to  a  certain 
extent,  from  the  provisions  of  the  Gaming  Acts.  This 
was  first  done  by  stat.  13  Geo.  II.,  c.  19,  which  legalized 
matches  run  at  Newmarket,  or  Black  Hambleton,  or  for 
the  sum  of  £50  and  upwards.  But  this  statute  im- 
posed certain  restrictions  as  to  the  weights  which  the 
horses  were  to  carry,  which  it  seemed  expedient  to 
repeal ;  and  for  that  purpose  was  passed  18  Geo.  II.,  c. 

(e)  You  may  consult,  on  the  construction  of  these  Acts,  Sigel  v.  Jebb,  3 
Stark.  (3  E.  C.  L.  R.)  1 ;  Brogden  v.  Marriott,  3  Bing.  N.  C.  (32  E.  C.  L.  E.) 
88;  and  M'Kinnell  f.  Robinson,  3  M.  &  W.  434. 

(/)  Goodburn  v.  Marley,  Str.  1159;  Blaxton  v.  Pye,  2  "NVils.  309;  and 
Brogden  v.  Marriott,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  88. 

283 


262  ILLEGAL  CONTRACTS.        [lECT.  VI. 

34,  s.  11,  which,  after  re<"iting  the  restriction  of  the 
former  statute  as  to  weights,  enacts  that  it  shall  be  law- 
ful for  any  person  to  run  any  match,  or  to  start  and  run 
for  any  plate,  prize,  sum  of  money,  or  other  thing  of 
the  value  of  fifty  pounds  or  upwards,  at  any  weights 
whatever,  in  the  same  manner  as  if  the  Act  of  the  lotb 
of  Geo.  II.  had  never  been  made. 

This  Act,  you  will  at  once  see,  was  m.ade  merely  to 
take  away  the  restrictions  with  regard  to  weight,  which 
had  been  imposed  by  the  13th  of  Geo.  11. ;  but  tliough 
that  was  its  object,  by  one  of  those  strange  accidents 
which  are  so  common  in  the  history  of  law,  the  legality 
of  all  horse-racing  came  to  depend  upon  it. 
i_...  '''In  the  1st  section  of  the  loth  of  Geo.  11. 

L  *^  -■  there  was  a  very  strange  and  unaccountable  en- 
actment. It  enacted  that  no  person  should  start  more 
than  one  horse  for  the  same  j)late ;  and  that,  if  he  did, 
all  the  horses  entered  by  him,  except  the  first,  should  be 
forfeited,  and  recovered  by  information  or  action  at  the 
suit  of  a  common  informer.  The  law  regarding  racing, 
mixed  up  as  it  was  with  the  other  Gaming  Acts,  being 
extremely  complex,  this  portion  of  it  was  probably  for- 
gotten, and  certainly  was  not  universally  acted  upon, 
when  suddenly,  in  the  years  1889  and  1840,  informa- 
tions were  filed  for  the  purpose  of  recovering  several 
valuable  race-horses  which  had  been  entered  by  their 
owners,  along  with  other  horses  their  property,  for  the 
same  stakes,  in  total  ignorance  of  the  prohibition  of  the 
Act  of  Parliament. 

As  soon  as  tliis  was  represented  to  the  Legislature,  it 
interfered  for  the  protection  of  the  defendants,  and 
passed  the  3  Vict.  c.  5 ;  but  the  Act,  I  presume,  inad- 
vertently, instead  of  repealing  so  much  of  the  13  Geo. 
II.  as  inflicted  penalties,  repealed  that  Act  altogether  so 
far  as  it  related  to  horse-races. 
284 


LECT.  VI.]        ILLEGAL  CONTRACTS.  263 

Now  it  had  always  been  supposed  that  the  legality  of 
horse-races  depended  on  the  18  Geo.  II.,  and  that  the 
Act  of  the  18th  of  the  same  reign  was  a  subsidiary  Act, 
and  had  merely  the  effect  of  taking  off  restrictions  as 
to  weight.  And  many  persons  therefore  thought  that 
the  Act  of  3  Vict.  *c.  5,  instead  of  effecting  the  p.-^^^  .n 
object  of  the  Legislature  by  protecting  horse-  '-  ^  -^ 
races,  had  repealed  the  only  enactment  by  which  they 
were  supported,  so  tliat  they  had  been  thrown  back  into 
the  class  of  games  comprised  within  the  statute  of  Anne, 
and  would  be  illegal  if  for  a  larger  stake  than  £10.  At 
length  the  question  arose,  and  was  argued  in  a  case  of 
Evans  v.  Pratt  (g)  in  which  the  Court  of  Common 
Pleas  decided  that  the  words  of  the  11th  section  of  the 
18  Geo.  II.,  c.  84,  were  large  enough  to  legalize  all 
horse-races  for  stakes  of  £50  and  upwards.  Such  races 
are  therefore  legal,  and  it  is  settled  (A)  that  a  race  for 
£25  a  side  is  a  race  for  £50. 

These  statutes  and  cases  were  reviewed  at  great  length 
in  the  case  of  Applegarth  v.  Colley  {i),  which  decided 
tliat  a  horse-race  for  a  sweepstakes  for  £2  each  was  not 
illegal,  although  the  total  amount  subscribed  and  run 
for  amounted  to  less  than  £50,  inasmuch  as  neither  the 
statute  of  Charles  (it  being  a  ready  money  payment) 
nor  the  statute  of  Anne  applied  to  a  "  race  for  a  sum  of 
money  not  raised  by  the  parties  themselves  (that  being, 
in  truth,  a  wager),  but  given  by  w^ay  of  prize  by  a  third 
person  desirous  of  encouraging  racing." 

But  though  a  race  for  £50  was  thus  legalised,  a  bet 
on  such  a  race  was  not  so,  for  it  was  '''decided  {k)  ^-. 

that  a  person  betting  even  on  a  legal  horse-race    ^         -" 

(g)  11  L.  J.  (C.  P.)  87 ;  3  M.  &  G.  (42  E.  C.  L.  E.)  759 ;  and  see  Bentinck 
f).  Connop,  5  Q.  B.  (48  E.  C.  L.  R.)  693. 
(h)  Bidmead  v.  Gale,  4  Burr.  2432. 
(i)  10  M.  &  W.  723. 
(A)  Sliillito  V.  Theed,  7  Bing.  (20  E.  C.  L.  R.)  405. 

285 


265  ILLEGAL  CONTRACTS.        [lECT.  VI. 

is  in  the  same  situation  as  if  he  had  betted  upon  any 
other  game. 

Now  there  is  one  point  not  perhaps  precisely  form- 
ing part  of,  but  strongly  bearing  on  this  subject,  and 
of  which  I  must  here  warn  you.  When  I  speak  of 
the  statutes  of  Charles  and  Anne  as  rendering  bets  of 
a  greater  amount  than  £10  recoverable  back  from  the 
winner,  and  rendering  all  securities  for  bets  void,  you 
must  understand  me  to  speak  of  bets  on  persons 
gaming ;  for  the  words  of  the  former  statute  are, 
by  "  playing  at  the  games  or  betting  on  the  players," 
and  of  the  latter  and  more  imj^ortant  one,  "  betting  on 
the  sides  of  such  as  game  at  any  of  the  aforesaid 
games."  All  wagers,  therefore,  were  not  affected  by 
these  statutes,  but  only  wagers  upon  games.'"  Now  a 
foot-race  was  held  to  be  a  game  within  these  Acts  (Z), 
as  also  was  a  dog-race  (m).  So  were  cards,  dice,  tennis, 
bowls,  for  they  are  mentioned  in  the  Acts ;  and  so  was 
cricket,  though  not  sjaecified  (n)  ;  not  that  there  was 
anything  illegal  in  these  amusements  themselves,  but 
that  the  law  would  not  allow  the  winner  of  £10  or 
upwards  to  receive  or  retain  his  winnings,  nor  would  it 
allow  any  security  for  any  winnings  at  them  to  be  en- 
pj^o/^p-i  forced.  But  as  *to  wagers  not  made  upon  games 
within  the  meaning  of  these  Acts  of  Parlia- 
ment, if  there  was  nothing  illegal  or  opposed  to  public 
policy  in  the  subject-matter  of  the  wager,  it  was  held 
that  there  was  no  statute  which  affected  its  validity. 
This  was  decided  in  the  famous  case  of  Good  v. 
Elliott  (o),  in  which  the  wager,  whether  a  particular 
person  had,  before  a  particular  day,  bought  a  waggon, 

{I)  Lynall  v.  Longbotham,  2  Wils.  36. 
(m)  Daintree  v.  Hutchinson,  10  M.  &  W.  85. 
(n)  Hodson  i;.  Terrill,  3  Tyr.  929  ;  1  C.  &  M.  797. 

(o)  3  T.  E.  693;  and  see  Hussey  v.  Crickitt,  3  Camp.  168;  Jones  v.Eandall, 
Cowji.  37  ;  Evans  v.  Jones,  5  M.  &  W.  82. 
286 


LECT.  VI.]  ILLEGAL   CONTRACTS.  266 

was  held  legal,  and  the  winner  allowed  to  recover 
against  the  loser  in  an  action,  by  three  judges,  con- 
trary to  the  opinion  of  Mr.  J.  Buller,  who  advocated 
the  view  which  probably  would  have  been  most  con- 
sistent with  sound  policy — namely,  that  the  Courts 
should  refuse  to  occupy  their  own  time  and  that  of  the 
public  by  trying  such  questions. 

Such,  then,  being  the  state  of  the  law  as  to  gaming 
and  wagering,  in  1845  stat.  8  &  9  Vict.,  c.  109  was 
passed,  of  which  s.  15  repeals  16  Car.  II.,  c.  7,  and  so 
much  of  9  Anne,  c.  14,  as  was  not  altered  by  stat.  5  & 
6  Will.  IV.,  c.  41  (which  Act  will  be  referred  to  in  the 
next  lecture)  ;  and  s.  18  of  which  enacts  "that  all  con- 
tracts or  agreements,  whether  by  parol  or  in  writing, 
by  way  of  gaming  or  wagering,  shall  be  null  and  void  ; 
and  that  no  suit  shall  be  brought  or  maintained  in  any 
court  of  law  or  equity  for  recovering  any  sum  of  money 
or  valuable  *thing  alleged  to  be  won  upon  any  r^onn-i 
wager,  or  which  shall  have  been  deposited  in 
the  hands  of  any  person  to  abide  the  event  on  which 
any  wager  shall  have  been  made ;  provided  always  that 
this  enactment  shall  not  be  deemed  to  ap|)ly  to  any  sub- 
scription or  contribution,  or  agreement  to  subscribe  or 
contribute  for  or  toward  any  plate,  prize,  or  sum  of 
money  to  be  awarded  to  the  winner  or  winners  of  any 
lawful  game,  sport,  pastime,  or  exercise." 

It  is  clear,  that,  at  common  law,  contracts  by  way  of 
gaming  or  wagering  were  not,  as  such,  unlawful  (^).'^ 

(p)  Tliackoorseydass  v.  Dliondmull,  6  Moo.  (P.  C.)  300 ;  Hampden  v.  Walsh, 
1  Q.  B.  D.  189 ;  45  L.  J.  (Q.  B.,  etc.)  238. 


^  By  the  common  law,  wagers  were  valid :  Good  v.  Elliott,  3  T.  R.  693,  and 
cases  cited  supra;  Campbell  v.  Eichardson,  10  Johns.  406;  Haskett t).  Wootan, 
1  N.  &  McC.  180  ;  Clark  v.  Gibson,  12  N.  H.  386 ;  Ball  v.  Gilbert,  12  Mete.  397  ; 
Scott  V.  Duffy,  14  Pa.  St.  18;  except  so  far  as  contrary,  1.  To  public  policy,  or 
2.  To  private  characters  or  feelings.     The  former  ground  renders  invalid  all 

287 


267  ILLEGAL  CONTEACTS.        [lECT.  VI. 

Their  illegality  depends  upon  statute  law,  and  after  nu- 
merous alterations,  it  does  not  seem,  that,  in  the  many 


wagers  on  the  result  of  an  election  :  Allen  v.  Hearn,  1  T.  R.  56;  Ball  v.  Gil- 
bert, supra;  Eust  v.  Gott,  9  Cow.  169:  Wheeler  v.  Spencer,  15  Conn.  28; 
Lloyd  V.  Leisenring,  7  Watts,  294;  Wagonseller  v.  Snyder,  lb.  343;  Wroth  v. 
Johnson,  4  Harr.  &  M'Hen.  284;  Gardner  v.  Kolen,  3  Harring.  420;  I^iival  v. 
Myers,  1  Bai.  486  ;  Duncan  v.  Cox,  6  Blackf.  270  ;  on  tlie  acquittal  or  discharge 
of  a  prisoner:  Evans  v.  Jones,  5  M.  &  W.  77  ;  on  the  result  of  a  prize  fight: 
Hunt  V.  Bell,  1  Bing.  (8  E.  C.  L.  E.)  1  ;  McKeon  r.  Calierty,  1  Hall,  300;  in 
restraint  of  marriage:  Hartley  v.  Eice,  10  East,  22,  and  the  like.  The  second 
ground  renders  invalid,  wagers  as  to  whether  an  unmarried  woman  would  have 
a  child  by  a  certain  day:  Dichurn  v.  Goldsmith,  4  Camp.  152;  as  to  the  sex 
of  a  third  person:  Da  Costa  v.  Jones,  Cowp.  729  (which  was  the  well-known 
case  as  to  the  sex  of  the  Chevalier  D'Eon) ;  as  to  the  life  of  a  human  being: 
Phillips  V.  Ives,  1  Eawle,  37  ;  and  perhaps  as  to  the  solvency  of  a  third  per- 
son :  Thornton  v.  Thackray,  2  Y.  &  Jerv.  156. 

But  as  actions  on  wagers  of  any  kind  were  never  favoured  by  the  courts,  they 
have  at  times  gone  so  far  as  to  hold  all  wagers  to  be  invalid :  Lewis  v.  Little- 
field,  15  Me.  233  ;  Collamer  v.  Day,  2  Vt.  144  ;  Edgell  r.  M'Laughlin,  6  WHiart. 
179c;  Thomas  v.  Cronise,  16  Ohio,  54  ;  Hoit  v.  Hodge,  6  N.  H.  104;  Eice  v. 
Gist,  1  Strob.  82 ;  and  in  many  of  the  States  statutory  provisions  exist,  forbid- 
ding wagering  or  gaming  contracts,  to  a  greater  or  less  extent:  Wheeler?;. 
Spencer,  15  Conn.  28  ;  Fowler  v.  Van  Surdam,  1  Den.  557  ;  Faris  v,  Kirtley,  5 
Dana,  460. 

Where  a  wager  is  invalid  from  any  of  the  above  causes,  so  long  as  the  money 
remains  in  the  hands  of  the  stakeholder,  it  is  considered  as  being  still  within 
the  control  of  the  parties,  and  the  loser  may  maintain  an  action  to  recover 
his  stake :  M'AUister  v.  Hoflinan,  16  S.  &  E.  148 :  McAllister  v.  Gallaher,  3  P. 
&  W.  468;  Tarleton  v.  Baker,  18  Vt.  9;  although  if  the  money  have  been 
actually  and  bond  fide  paid  over  by  the  stakeholder  to  the  winner,  no  part  of 
it  can  be  recovered  from  the  latter  by  the  loser,  for  the  ca.se  then  comes  within 
the  maxim,  in  pari  delicto  potior  est  conditio  defendentis :  McAllister  v.  Hoffman, 
svpra;  Speise  v.  M'Coy,  6  W.  &  S.  485;  Danforth  v.  Evans,  16  Vt.  538; 
Machir  v.  Moore,  2  Gratt.  257 ;  M'Hatton  v.  Bates,  4  Blackf.  63 ;  Thomas 
V.  Cronise,  16  Ohio,  54;  but  if  the  stakholder  should  pay  over  the  money  to 
the  winner,  after  notice  from  the  loser  not  to  do  so,  he  would  pay  at  his  own 
risk,  and  being  in  the  position  of  a  mere  agent  whose  authority  has  been  re- 
voked, he  would  be  liable  to  the  loser  for  the  amount  of  his  stake :  Wheeler 
V.  Spencer,  supra;  Ivey  v.  Phifer,  11  Ala.  535  ;  Stacy  v.  Foss,  19  Me.  335  ;  Per- 
kins V.  Hyde,  6  Yerg.  288.  The  law  was  so  held  in  New  York  in  Vischer  v. 
Yates,  11  Johns.  23;  but  that  decision  was  overruled  by  Yates  v.  Foot,  12 
lb.  1 ;  and  although  the  Eevised  Statutes  give  a  remedy  against  a  stakeholder 
■who  pays  over  to  the  winner  after  notice  from  the  loser,  yet  the  courts  apply 
the  rule  of  Yates  v.  Foot,  in  cases  not  brought  exactly  within  the  statute  as  to 
form,  time,  etc. :  Brush  v.  Keeler,  5  Wend.  250 ;  Fowler  v.  Van  Surdam,  1  Den. 
657. 

288 


LECT.  VI.]  ILLEGAL   CONTRACTS.  267 

statutes  on  the  subject  of  gaming,  any  enactment  re- 
mains, except  6  Will.  IV.,  c.  41,  s.  1,  hereafter  men- 
tioned, wliereby  they  are  rendered  illegal  {q). 

For  examples  of  contracts  held  void  under  8  &  9 
Vict.,  c.  109,  s.  18,  as  being  by  way  of  gaming  and 
wagering,  you  may  refer  to  Grizewood  v.  Blane 
(r),  Rourke  v.  Short  (s),  and  Hampden  v.  Walsh  (/). 
*The  first  of  these  cases  shows  that  a  colour-  p..j,o/>o-i 
able  contract  for  the  sale  and  purchase  of  rail-  ^  -' 
way  shares  where  neither  party  intends  to  deliver  or  to 
accept  the  shares,  but  merely  to  pay  "  differences  "  ac- 
cording to  the  rise  or  fall  of  the  market  is  gaming  within 
the  last-mentioned  enactment  {u).     In  Rourke  v.  Short, 

{q)  Beeston  v.  Beeston,  1  Ex.  D.  13 ;  45  L.  J.  (Q.  B.,  etc.)  230. 

(r)  11  C.  B.  (73  E.  C.  L.  R.)  538. 

(s)  5  E.  &  B.  (85  E.  C.  L.  E.)  904;  25  L.  J.  (Q.  B.)  196. 

(0  1  Q.  B.  D.  189 ;  45  L.  J.  (Q.  B.,  etc.)  238.  See  also  the  recent  cases  of 
Batson  r.  Newman,  1  C.  P.  D.  573 ;  Higginson  i-.  Simpson,  2  C.  P.  D.  76,  46  L. 
J.  (Q.  B.,  etc.)  192,  for  other  examples  of  contracts  held  void  as  being  for 
gaming  or  wagering. 

(u)  But  if  a  man  employ  a  broker  to  speculate  for  him  on  the  Stock  Ex- 
change, though  it  is  not  intended  between  the  employer  and  the  broker  that 
the  stock  bought  or  sold  should  be  accepted  or  delivered,  but  that  the  employer 
should  only  pay  the  differences,  this  is  not  void  as  a  gaming  transaction  so  as 
to  preclude  the  broker  from  suing  his  employer  for  commission,  or  for  an  in- 
demnity in  respect  of  the  contracts  on  which  the  broker  has  incurred  a  per- 
sonal liability  to  third  persons.  Thacker  \\  Hardy,  4  Q.  B.  D.  685 ;  48  L.  J. 
(Q.  B.,  etc.)  289  ;  Ez  parte  Rogers,  In  re  Rogers,  15  Ch.  Div.  207. 

The  student  will  find  most  of  these,  as  well  as  many  other  authorities  upon 
the  subject  of  wagers  and  of  wagering  policies,  in  the  note  to  Godsall  v. 
Boldero,  2  Smith's  L.  C.  293.— R. 

A  bet  on  an  election  i's  void  at  common  law :  Like  v.  Thompson,  9  Barb. 
315:  See  also  Bettis  v.  Reynolds,  12  Ired.  344;  Terrall  v.  Adams,  23  Miss. 
570;  Bates  v.  Lancaster,  10  Humph.  134;  Bevil  v.  Hix,  12  B.  Mon.  140. 
[Lockhart  v.  HuUinger,  2  111.  App.  465.] 

As  to  wagers  generally,  see  Smith  v.  Brown,  3  Tex.  360 ;  Humphreys  v, 
Magee,  13  Mo.  435;  McElroy  v.  Carmichael,  6  Tex.  454;  Parsons  v.  The 
State,  2  Ind.  499.  A  contract  to  purchase  sliares  of  stock  without  the  inten- 
tion to  deliver  or  receive  them,  is  a  gaming  contract:  Brua's  Appeal,  55  Pa. 
St.  294  ;  Ex  parte  Young,  6  Biss.  53.  Contracts  for  the  future  sale  and  delivery 
of  goods  not  in  the  possession  of  the  vendor  are  not  illegal :  Shipp  v.  Bowen, 
25  Ind.  44 ;  Mcll value  v.  Egerton,  2  Rob.  422.— s. 

19  289 


268  ILLEGAL  CONTRACTS.        [lECT.  VL 

plaintiff  and  defendant,  while  conversing  as  to  some 
rags  which  plaintiff  proposed  to  sell  and  defendant  to 
purchase,  disputed  as  to  the  price  of  a  former  lot  of 
rags,  plaintiff  asserting  the  price  to  have  been  lower  than 
defendant  asserted  it  to  have  been.  They  agreed  that 
the  question  should  be  referred  to  M.,  a  spirit  merchant, 
and  that  whichever  party  was  wrong  should  pay  M.  for 
a  gallon  of  brandy,  and  that,  if  plaintiff  was  right,  the 
price  of  the  lot  now  on  sale  should  be  6s.  per  cwt.,  but 
if  the  defendant  was  right  85.  M.  decided  that  plain- 
tiff was  right.  The  latter  sent  the  rags  to  defendant, 
but  defendant  refused  to  accept  them  at  Gs.,  offering  5s. 
The  Court  held,  that  the  contract  was  by  way  of  wager- 
ing and  could  not  be  '^upheld.  In  Hampden  v. 
*-  ^  -I  Walsh,  the  plaintiff,  who  disbelieved  in  the  con- 
vexity of  the  earth,  and  a  Mr.  Wallace,  dej^osited  each 
£500  with  defendant,  on  an  agreement  that  if  Wallace, 
on  or  before  the  15th  of  March,  1870,  proved  the  con- 
vexity or  curvature  to  and  fro  of  the  surface  of  any  canal, 
river,  or  lake,  by  actual  measurement  and  demonstration, 
to  the  satisfaction  of  defendant,  Wallace  should  receive 
the  two  sums  deposited;  but  if  Wallace  failed  in  doing 
this,  the  two  sums  were  to  be  paid  to  the  plaintiff.  The 
agreement  was  held  to  be  a  mere  wager. 

It  is  clear,  under  s.  18,  that  the  lawfulness  of  any 
game  at  which  any  wager  is  made,  does  not  make  the 
wager  lawful,  in  the  sense  of  being  recoverable  in  an 
action  {x) :  but  if  a  party  loses  a  wager,  and  requests 
another  to  pay  it  for  him,  the  loser  is  liable  to  the  party 
so  paying  it  for  money  paid  at  his  request  (y).  And 
where  the  plaintiff  had  paid  the  defendant  money  on 
the  terms  that  the  defendant  was  to  employ  it  in  betting 

(a;)  Parsons  v.  Alexander,  24  L.  J.  (Q.  B.)  277  ;  5  E.  &  B.  (85  E.  C.  L.  R.) 
263. 

(y)  Rosewarne  v.  Billing,  33  L.  J.  (C.  P.)  56. 

290 


LECT.  VI.]  ILLEGAL   CONTRACTS.  2G9 

ou  certain  horse-races,  and  to  pay  the  plaintiff  a  certain 
proportion  of  the  winnings,  and  the  defendant  did  so 
bet  and  won,  and  gave  a  cheque  to  the  plamtiff  for  his 
share  of  the  winnings,  it  was  held  that  the  plaintiff 
could  sue  the  defendant  on  the  cheque,  which  w^as  dis- 
honoured, and  on  accounts  stated  *the  defend-  r-^or-rri 
ant  having  received  moneys  for  which  he  had 
agreed  to  account,  and  was  therefore  bound  to  do  so  {z). 
But  it  has  been  held  also,  that  the  amount  of  a  bet  lost 
at  a  horse-race,  and  paid  by  the  loser  into  the  hands  of 
a  third  party,  on  the  promise  of  the  latter  to  pay  it  to 
the  winner,  cannot  be  recovered  by  the  winner  out  of 
the  assets  of  such  third  person,  if  deceased  (a). 

Where  money  is  deposited  with  a  stakeholder  to 
abide  the  event  of  any  wager,  there  is  nothing,  in  the 
section  under  consideration,  to  prevent  such  a  dej^ositor, 
w4io  repents  of  his  venture  and  repudiates  the  wager, 
from  revoking  the  autliority  given  by  him  to  the  stake- 
holder to  pay  the  money  to  the  winner,  at  any  time 
before  the  stakeholder  has  paid  over  the  money,  and 
suing  the  latter  for  his  deposit,  and  recovering  it  from 
him  (b).  But  the  winner,  after  the  happening  of  the 
event  on  which  the  wager  depended,  cannot  recover  his 
winnings  unless  the  transaction  comes  within  the  pro- 
tection of  the  proviso  with  which  section  18  '^con-  r^^oy-i  -i 
eludes  (c).  Where  the  deposit  comes  within  s. 
5  of  16  &  17  Vict.  c.  119  (for  the  suppression  of  Bet- 
ting-houses), it  may  under  that  section  be  recovered 

(2)  Beeston  v.  Beeston,  1  Ex.  D.  13,  45  L.  J  (Q.  B.,  etc.1  230.  See  also  Ex 
parte  Pyke,  In  re  Lister,  8  Ch.  Div.  754. 

(a)  Beyer  v.  Adams,  26  L.  J.  (Ch.)  841. 

(b)  Diggle  V.  Higgs,  2  Ex.  D.  (C.  A.)  422,  46  L.  J.  (Q.  B.,  etc.)  721  ;  Hamp- 
den V.  Walsh,  1  Q.  B.  D.  189 ;  45  L.  J.  (Q.  B.,  etc.)  238;  Varney  v.  Hickman,  5 
C.  B.  (57  E.  C.  L.  R.)  271 ;  Martin  v.  He-A-son,  24  L.  J.  (Ex.)  174  ;  10  Ex.  737  ; 
Trimble  v.  Hill,  5  App.  Cas.  342;  49  L.  J.  (P.  C.)  49. 

(c)  Varney  v  Hickman,  Parsons  v.  Alexander,  svpra,  Savage  r.  Madder,  36 
L.  J.  (Ex.)  178. 

291 


271  ILLEGAL  CONTRACTS.        [lECT.  VT. 

from  the  receiver  as  money  received  for  the  use  of  the 
depositor  (d). 

Where,  however,  a  person  employed  a  turf  commis- 
sion agent  to  bet  for  him  in  the  agent's  own  name,  and 
the  agent  made  the  bet  accordingly  and  became  him- 
self personally  liable  for  payment  in  the  event  of  loss, 
incurring  serious  disabilities  if  a  defaulter,  it  was  held 
that  the  principal  after  the  bet  was  made  could  not, 
•where  the  bet  was  lost  but  before  the  money  was  paid 
over,  repudiate  the  authority  and  subsequently  refuse 
to  repay  the  agent  the  money  he  had  paid  in  pursuance 
of  the  lost  bet.  The  authority  was  held  irrevocable, 
both  on  the  ground  that  an  authority  coupled  with  an 
interest  in  the  donee  of  the  authority  is  irrevocable, 
and  also  on  the  ground  that  if  one  man  employs 
another  to  do  a  legal  act  (e),  which  in  the  ordinary 
course  of  things  will  involve  the  agent  in  pecuniary 
obligations  or  otherwise,  a  contract  on  the  part  of 
the  employer  to  indemnify  his  agent  is  implied  by 
law  (/). 

r*979'l  *Although  a  foot-race  comes  within  the  pro- 
viso  in  s.  18  as  being  a  "  lawful  game,  sport,  or 
pastime "  (g),  yet  an  agreement  to  w^alk  a  match  for 
£200  a-side,  the  money  being  deposited  with  a  stake- 
holder, is  a  wager,  and  null  and  void  under  that  sec- 
tion ;  and  the  deposit  of  the  money  is  not  a  subscrip- 
tion or  contribution  for  a  sum  of  money  to  be  awarded 
to  the  winner  of  a  lawful  game,  within  the  meaning  of 
the  proviso  (A).     And  the  proviso  does  not  extend  to 

(d)  See  as  to  that  section,  Doggett  v.  Catterms,  34  L.  J.  (C.  P.)  46. 

(e)  That  making  a  bet  is  not  an  illegal  act,  see  ante,  p.  *260. 

(/)  Kead  v.  Anderson,  10  Q.  B.  D.  100;  52  L.  J.  {Q.  B.)  214,  affirmed  by  a 
majority  of  the  C.  A.,  diss.  Brett,  M.  E ,  51  L.  T.  Eep.  N.  S.  55.  See  also 
Thacker  v.  Hardy,  4  Q.  B.  D.  685 ;  48  L.  J.  (Q.  B.,  etc.)  289,  ante,  p.  *268. 

(g)  Batty  v.  Marriott,  5  C.  B.  (57  E.  C.  L.  K.)  818. 

(h)  Diggle  V.  Higgs,  2  Ex.  D.  (C.  A.)  422 ;  46  L.  J.  (Q.  B.,  etc.)  721 ;  over- 
ruling Batty  V.  Marriott,  5  C.  B.  (57  E.  C.  L.  E)  818,  where  it  was  held  that 
292 


LECT.  VI.]  ILLEGAL   CONTRACTS.  272 

a  case  where  two  persons  ran  their  horses  against  each 
other,  the  winner  to  have  both  horses,  there  being  no 
subscription  or  contribution  towards  any  plate,  prize, 
or  sum  of  money  to  be  awarded  to  the  winner(t). 

There  is,  however,  one  chiss  of  wagers  which  requires 
some  attention.  I  allude  to  wagers  in  the  shape  of 
policies  of  insurance.  An  insurance,  as  you  doubtless 
are  aware,  is  a  contract  by  which,  in  consideration  of 
a  premium,  one  or  more  jierson  or  persons  assure 
another  person  or  persons  in  a  certain  amount  against 
the  happening  of  a  particular  event ;  for  instance,  the 
death  of  an  individual,  the  loss  of  *a  sliip,  or  ^^!:9^-o-| 
the  destruction  of  property  by  fire.  These 
three  classes  of  policies,  upon  ships,  lives,  and  fire,  are 
of  the  most  common  occurrence ;  but  there  is  nothing 
to  prevent  insurance  against  other  events ;  for  instance 
in  Carter  v.  Boehm  {k),  one  of  the  most  celebrated 
cases  in  the  Reports,  Lord  Mansfield,  and  the  rest  of 
the  then  Court  of  King's  Bench,  supported  a  policy  of 
insurance  against  foreign  capture  effected  in  a  fortress. 
Now,  this  contract  of  insurance,  though  one  of  the 
most  beneficial  known  to  the  law,  since  it  enables  par- 
ties to  provide  against  events  which  no  human  skill  can 
control,  to  provide,  for  instance,  against  the  ruin  of  a 
family  by  the  sudden  death  of  a  parent,  the  ruin  of  a 
merchant  by  the  loss  of  his  venture  at  sea,  or  of  a 
manufacturer  by  the  outbreak  of  a  fire  on  his  premises, 
though  productive,  therefore,  of  most  beneficial  conse- 
quences to  society,  yet  is  very  liable  to  be  abused,  and 
made  an  engine  of  mere  gambling;  for  instance,  A. 
insures  B.'s  life,  ■i.  e.,  he  pays  so  much  a  year,  or  so 
much  in  the  lump,  to  some  one  who  is  to  pay  him  so 

8uch  a  deposit  was  within  the  protection  of  the  proviso :  Trimble  v.  Hill,  5 
App.  Cas.  342;  49  L.  J.  (P.  C.)  49. 

(0  Coombes  v.  Dibble,  L.  R.  1  Ex.  248 ;  35  L.  J.  (Ex.)  167. 

(i)  3  Burr.  1905 ;  1  Smith,  L.  C.  550,  Sth  ed. 

293 


273  ILLEGAL  CONTKACTS.        [lECT.  VI. 

much  upon  B.'s  death.  If  B.  owes  him  money,  and 
his  object  is  to  secure  himself,  it  is  a  bond  fide  insur- 
ance ;  but  if  B.  is  a  mere  stranger,  in  wliose  life  he  has 
no  interest,  it  is  a  mere  wager.  In  order  to  prevent 
the  contract  of  insurance  from  being  thus  abused,  the 
statute  14  Geo.  III.,  c.  48,  prohibiting  w^ager  policies,  as 
r*9741  ^^^^y  ^^^  called,  ^altogether,  prevents  a  man 
from  insuring  an  event  in  which  he  has  no 
interest,  and  where  he  has  an  interest,  but  not  to  the 
extent  insured,  prohibits  him  from  recovering  more 
than  the  amount  of  his  interest.  The  effect  of  this 
Act,  in  a  word,  is  to  invalidate  wagers  framed  in  the 
shape  of  policies  of  insurance — thus,  a  wager  on  the 
price  of  Brazilian  shares  framed  like  a  policy  was  held 
invalid  {I).  But  where  the-  transaction  would  not  be 
commonly  understood  to  be  a  policy  of  insurance,  and 
therefore  would  not  fall  within  the  words  of  the  stat. 
14  Geo.  III.,  c.  48,  taken  in  their  ordinary  acceptation, 
the  Courts  would  probably  not  consider  it  as  within 
this  Act  (m). 

This  Act  applies  to  all  subjects  of  insurance  except 
marine  risk,  and  these  are  provided  for  by  the  insertion 
of  a  similar  prohibition  contained  in  19  Geo.  II.,  c.  37, 
s.  1,  enacting,  that  no  insurance  shall  be  made  on  any 
shij)  belonging  to  his  Majesty  or  any  of  his  subjects,  or 
on  any  goods,  merchandise,  or  effects,  laden  or  to  be 
laden  on  board  thereof,  interest  or  no  interest,  or  with- 
out further  proof  of  interest  than  the  policy,  or  by  way 
of  gaming  or  wagering,  or  without  benefit  of  salvage  to 
the  assurers.  And  it  is  decided  that  one  who  has 
any  interest  may  be  insured  to  the  extent  of  it,  and 
any  one  may  be  considered  to  have  an  interest,  who 
may  be  injured  by  the  risks  to  which  the  subject- 
ed Paterson  v.  Powell,  9  Bing.  (23  E.  C.  L.  E)  320. 
(m)  Ck)ok  V.  Field,  16  Q.  B.  (69  E.  C.  L.  E.)  475. 

294 


LECT.  VI. J"  ILLEGAL   CONTRACTS.  274 

matter  *is  exposed,  or  who  but  for  such  risks    r^nypr-i 
woukl  have  an  advantage  in  the  ordinary  and 
probable  course  of  things  (n). 

It  having  been  enacted  by  the  statute  14  Geo.  III., 
c.  48,  that  no  insurance  sliall  be  made  by  any  person  on 
the  life  of  any  person,  or  on  any  other  event  whatsoever, 
wherein  the  person  for  wdiose  use,  benefit,  or  on  whose 
account  such  policy  shall  be  made,  shall  have  no  inter- 
est, and  that  every  assurance  made  contrary  to  the 
intent  thereof  shall  be  null  and  void,  it  is  imj)ortant  to 
ascertain  what  is  to  be  considered  as  an  interest  in  the 
event  within  the  meaning  of  this  statute.  It  is  clear 
that  a  creditor  has  an  interest  in  the  life  of  his  debtor  (o), 
that  a  trustee  may  insure  for  the  benefit  of  his  cestui 
que  trust  (p),  that  a  wife  has  an  interest  in  her  hus- 
band's life  {q)y  and  that  a  man  may  assure  his  own  life, 
which  is  the  common  case  of  every  day's  experience ; 
but  he  cannot  evade  the  statute  by  doing  so  with  the 
money  of  another,  which  other  is  to  derive  the  benefit 
of  the  assurance,  and  has  no  interest  in  his  life,  since  so 
to  do  would  be  virtually  ''""enabliiig  a  person  to  ^^ 
effect  an  assurance  on  an  event  wherein  he  has  '-  *^  -^ 
no  interest  (r).  It  is  also  required  that  in  every  policy 
on  the  life  of  another  the  name  of  the  person  really  in- 
terested when  the  policy  is  effected,  or  for  whose  benefit 
it  is  effected,  must  be  inserted  as  the  person  interested, 
and  the  omission  or  erroneous  statement  of  the  person 

(n)  Lucena  v.  Craufurd,  2  B.  &  P.  N.  R.  300;  Briggs  v.  Merchant  Traders* 
Shipping  Assurance  Association,  13  Q.  B.  {G6  E.  C.  L.  R.)  107 ;  see  Dalby  v. 
India  London  Life  Ass.  Co  ,  24  L.  J.  (C.  P.)  2;  15  C.  B.  (80  E.  C.  L.  R.)  365, 
in  Ex.  Ch.;  and  the  note  to  Godsall  v.  Boldero,  2  Smith,  L.  C,  291,  8th  ed. 

(o)  Von  Lindenau  v.  Desborough,  3  Car.  &  P.  (14  E.  C.  L.  R.)  353;  Cooke 
V.  Field,  15  Q.  B.  (69  E.  C.  L.  R.)  460. 

(p)  Tidswell  v.  Ankerstein,  Peake,  151 ;  Craufurd  v.  Hunter,  8  T.  R.  13. 

(q)  Read  v.  Royal  Exchange  Assurance  Company,  Peake,  Ad.  C.  70. 

(r)  Wainwright  v.  Bland,  1  M.  &  W.  32;  Shilling  v.  Accidental  Death  Ass, 
Co.,  26  L.  J.  (Ex.)  266 ;  2  H.  &  N.  42;  27  L.  J.  (Ex.)  17. 

295 


276  ILLEGAL   CONTEACTS.  [lECT.  VI 

interested,  avoids  the  policy,  whether  a  wagering  policy 
or  not  (s). 

(s)  14  Geo.  3,  c.  48,  s.  2;  Hodson  v.  Observer  Life  Ass.  Society,  26  L.  J.  (Q. 
B.)  303 ;  8  E.  &  B.  (92  E.  C.  L.  K.)  240.  See  38  &  39  Vict.  c.  60  (The  Friendly 
Societies  Act,  1875),  s.  25,  as  to  insurances  on  the  lives  of  children  under  10, 
made  with  Friendly  Societies.  Sub-s.  (8)  of  this  section  preserves  such  insar- 
ances  from  being  invalidated  by  14  Geo.  3,  c.  48. 


29b 


*LECTURE  VII.  [*277] 

THE  lord's  day  act. — SIMONY. ILLEGAL  WEIGBTS  AND 

MEASURES. CONTRACTS    BY  ILLEGAL  COMPANIES. 

ASSIGNMENT   OF    CONTRACTS. BILLS   OF   EXCHANGE 

FOR      ILLEGAL        CONSIDERATION. RECOVERY       OF 

MONEY    PAID    ON    ILLEGAL   CONTRACTS. 

There  are  some  other  heads  of  statutable  illegality 
which  are  frequently  set  up  as  affording  an  answer  to 
any  attempt  to  enforce  contracts  vitiated  by  them.  I 
directed  your  attention  on  the  last  occasion,  to  the  de- 
fences which  arise  under  the  laws  enacted  for  preven- 
tion of  gambling ;  noticing  the  invalidity  of  certain 
wagers  not  falling  within  the  statutes  against  gaming, 
by  reason  of  the  Acts  of  Parliament  which  prohibit 
wagering  insurances. 

The  first  {a)  class  of  cases  to  which  I  will  now  advert, 
consists  of  those  contracts  falling  within  the  operation  of 
the  statute  commonly  known  by  the  name  of  the  Lord's 
Day  Act.  It  is  29  Car.  II.,  ^'c.  7,  and  it  enacts  pico-o-i 
that  no  tradesman,  artificer,  workman,  labourer, 
or  other  person  whatever  shall  do  or  exercise  any 
worldly  labour,  or  business  or  work  of  their  ordinary 
callings,  upon  the  Lord's  day  (works  of  necessity  or 
charity  only  excepted),  and  that  every  person  of  the 
age  of  fourteen  years  offending  in  the  premises,  shall 
forfeit  five  shillings.^     The  contracts  prohibited  by  this 

(a)  The  first  class  of  contracts  treated  of  in  this  lecture  in  the  earlier  editions 
were  those  falling  within  the  prohibition  of  the  Stockjobbing  Acts:  bnt  the 
latter  having  been  repealed  by  23  Vict.  c.  »8,  it  seemed  better  to  omit  all  men- 
tion of  such  contracts  from  the  text,  as  being  no  longer  amongst  "  the  instances 
of  most  ordinary  practical  occurrence."     See  ante,  p.  *260. 


*  At  common  law,  judicial  proceedings  alone  seem  to  have  been  forbidden 

297 


278  ILLEGAL  CONTRACTS.       [lECT.  VII. 

Statute  are,  you  will  observe,  not  every  contract  made 
on  Sunday,   but  contracts  made  in  the  exercise  of  a 


on  Sunday :  Mackalley's  Case,  9  Co.  66  b ;  Comyns  v.  Beyer,  Cro.  Eliz.  485 ; 
Story  V.  Elliot,  8  Cow.  28 ;  Sayles  v.  Smith,  12  Wend.  59 ;  Boynton  v.  Page, 
13  lb.  429 ;  Kepner  v.  Keefer,  6  Watts,  233  ;  all  other  transactions,  therefore, 
done  on  that  day  depend  as  to  their  illegality  upon  statutory  prohibition.  The 
history  of  the  regulations  gradually  adopted  on  this  subject  was  thus  sketched 
by  Gilchrist,  J.,  in  the  recent  case  of  Allen  v.  Deming,  14  N.  H.  136.  "  It 
appears,"  said  he,  "  that  the  ancient  Cliristians  used  all  days  alike  for  the  hear- 
ing of  causes,  not  sparing  (as  it  seemeth^  the  Sunday  itself.  One  reason  for 
this  was,  that  tliey  might  not  imitate  the  heathens,  who  were  superstitious 
about  the  observance  of  days ;  and  also,  that  by  keeping  their  own  courts  always 
open,  they  might  prevent  Christian  suitors  from  resorting  to  heathen  courts: 
Spelman's  Original  of  the  Terms,  c.  17 ;  Swan  v.  Broome,  3  Burr.  1598.  But 
the  practice  ceased  with  the  reason  for  it,  and  in  the  year  510,  a  canon  was 
made,  '  Quod  nullus  episcopits  vel  infra  positus  die  dominico  catisas  judicare  prccsu- 
niat.'  This  canon,  with  others  of  a  similar  character,  was  confirmed  by  Wil- 
liam the  Conqueror  and  Henry  the  Second,  and  so  became  part  of  the  common 
law  of  England.  But  the  canons  extended  no  farther  ihan  to  prohibit  judicial 
business  on  Sundays ;  for  fairs,  markets,  sports,  and  pastimes  might  still  take 
place  on  the  Sabbath  :  Comyns  v.  Boyer,  Cro.  Eliz.  485,  decides  that  a  fair  held 
on  Sunday  is  well  enough,  although  by  the  27  Hen.  (i,  ch.  5,  a  penalty  was  in- 
flicted on  him  who  sold  on  that  day.  The  toleration  of  amusements,  and  the 
existence  of  fairs  in  England  to  a  greater  or  less  degree  upon  the  Sabbath,  are 
readily  accounted  for  by  their  own  accordance  with  the  practice  of  Eoman 
Catholic  countries,  among  which  was  England  until  the  Keformation  in  the 
reign  of  Henry  the  Eighth.  "With  the  spread  of  the  reformed  religion,  and 
the  consequent  improvement  in  civilization,  the  views  and  manners  of  the 
people  changed  on  the  subject  of  the  rational  observance  of  the  Sabbath,  and 
in  all  Prostestant  communities  laws  were  enacted  to  secure  it,  varying  in  their 
provisions  with  the  peculiarities  of  the  people.  Pastimes  of  various  kinds 
•were  prohibited  by  the  1  Car.  1,  c.  1,  and  by  the  29  Car.  2,  ch.  7.  All  persons 
•were  prohibited  from  'doing  or  exercising  any  worldly  labour,  business,  or  work 
of  their  ordinary  calling  upon  the  Lord's  day.' "  In  the  opinion  of  Lord  Mans- 
field in  Swan  v.  Broome,  3  Burr.  1598,  referred  to  in  the  above  extract,  the 
student  will  find  much  of  the  old  learning  on  this  subject. 

It  is  believed  that  provisions,  more  or  less  similar  to  those  of  the  statute  of 
Charles,  exist  in  all  the  United  States.  In  Kew  York,  the  statute  refers  only 
to  "servile  labour,"  and  "exposing  goods  for  sale."  In  South  Carolina,  New 
Hampshire,  and  Ehode  Island,  it  has  been  nearly  exactly  copied.  In  many 
of  the  other  States,  such  as  Pennsylvania,  Massachusetts,  Maine,  Vermont,  and 
Connecticut,  the  provisions  are  more  strict,  interdicting  all  secular  labour, 
whether  in  one's  ordinary  calling  or  not.  Thus,  no  action  can  be  maintained 
for  a  deceit  in  the  exchange  of  hoi-ses  on  Sunday  :  Robeson  v.  French,  12  Mete. 
24 :  or  a  breach  of  warranty :  Lyon  ?■.  Strong,  6  Vt.  219  ;  Adams  v.  Hamell,  2 
Doug.  73  ;  nor  for  any  injury  received  while  travelling  on  that  day,  by  reason 

298 


LECT.  VII.]  ILLEGAL   CONTRACTS.  278 

man's  trade  or  ordinary  calling ;  thus  it  lias  been  de- 
cided in  E.  V.  Wliitnash  {b),  that  a  contract  made  on 

(6)  7  B.  &  C.  (14  E.  C.  L.  R.)  596 ;  R.  v.  Silvester,  33  L.  J.  (M.  C.)  79. 

of  a  defective  highway  (the  journey  not  being  one  of  necessity  or  mercy) : 
Bosworth  V.  Swansey,  10  Mete.  365  (though  it  would  be  a  work  of  necessity  to 
repair  tlie  road  on  Sunday :  Flagg  v.  Millbury,  4  Cush.  244) ;  or  on  a  note  given 
on  that  day:  Kepner  v.  Keefer,  6  Watts,  232 ;  and  the  like.  There  was  a 
rather  early  decision  in  Massachusetts  (Geer  v.  Putnam,  10  Mass.  312),  to  the 
effect  that  a  plea  that  a  note  was  void  because  executed  on  Sunday,  was  bad 
on  demurrer,  but  tlie  case  proceeded  on  the  ground  that  the  plea  did  not  state 
on  what  part  of  Sunday  the  note  was  made,  the  act  only  extending  between 
midnight  on  Saturday  and  the  sunset  of  the  next  day ;  and  though  the 
authority  of  the  case  was  more  broadly  applied  in  Clap  v.  Smith,  16  Pick. 
247,  yet  the  recent  cases  have  explained  the  decision  on  the  ground  just 
stated:  Bosworth  v.  Swansey,  10  Mete.  364,  arg. ;  Robeson  v.  French,  12  lb. 
24. 

In  Specht  v.  The  Commonwealth,  8  Pa.  St.  313,  it  was  held,  affirming  the 
previous  decision  of  Commonwealth  v.  Wolf,  3  S.  &  R.  47,  that  the  Pennsylvania 
Lord's  Day  Act  was  not  at  variance  with  the  provision  in  the  State  constitu- 
tion, declaring  the  right  of  freedom  of  conscience  in  religious  matters,  and  a 
conviction,  under  the  act,  of  one  of  the  sect  called  the  Seventh  Day  Baptists 
was  therefore  sustained,  the  decision  being  based  upon  the  ground  of  a  day  of 
rest  being  necessary  to  the  welfare  of  .society,  and  that  the  mere  prohibition  of 
secular  occupation  did  not  interfere  with  the  right  of  conscience.  The  case 
of  Cincinnati  v.  Rice,  15  Ohio,  225,  was  decided  upon  a  clause  in  the  local 
statute,  exempting  persons  who  conscientiously  kept  holy  the  seventh  day, 
and  a  somewhat  similar  provision  is  found  in  the  Massachusetts  statute. 

But  although  a  bond  may  be  void  because  executed  on  Sunday,  so  that,  as  a 
bond  or  contract,  no  suit  can  be  maintained  upon  it,  yet  in  a  suit  founded  on 
the  previous  liability  of  the  defendant,  the  bond  may  be  regarded  as  an 
acknowledgment  of  that  liability,  as  there  is  nothing  to  prevent  a  man  from 
acknowledging  the  truth  on  Sunday,  and  consequently  nothing  to  prevent  its 
being  given  in  evidence  against  him:  Lea  v.  Hopkins,  7  Pa.  St.  492;  and 
in  any  case  in  which  such  a  defence  is  set  up,  it  is  necessary  that  the 
statute  be  specially  pleaded  :  Fox  v.  Mensch,  3  AV.  &  S.  444  ;  unless  of  course 
where  local  statutory  or  other  rules  of  pleading  have  varied  this  general 
principle. — R. 

See  Smith  v.  Bean,  15  N.  H.  577  ;  Flagg  i-.  Millbury,  4  Cush.  243  ;  Nason  v. 
Dinsniore,  34  Me.  391 ;  Goss  v.  Whitney,  24  Vt.  187 ;  Sumner  v.  Jones,  lb.  317  ; 
Hooper  v.  Edwards,  18  Ala.  280  ;  Hilton  v.  Houghton,  35  Me.  143;  Stackpole 
V.  Symonds,  23  N.  H.  229 ;  Rainey  v.  Capps,  22  Ala.  288  ;  Slade  v.  Arnold,  14 
B.  Mon.  287  ;  Murphy  v.  Simpson,  lb.  419 :  Hill  v.  Sherwood,  3  Wis.  343 ; 
Hussey  v.  Roquemore,  27  Ala.  286 ;  Goss  v.  Whitney,  27  Vt.  272.  An  agree- 
ment to  publish  an  advertisement  in  a  newspaper  issued  on  Sunday  is  void : 
Smith  V.  Wilcox,  25  Barb.  341,  24  N.  Y.  353.  A  promise  to  pay  a  debt  on 
Sunday  will  not  take  the  case  out  of  the  Statute  of  Limitations:  Bumgardner 
V.  Taylor,  28  Ala.  687.    The  Court  will  leave  parties  who  swapped  horses  on 

299 


278  ILLEGAL  CONTRACTS.       [lECT.  VII. 

Sunday  by  a  farmer  for  the  hire  of  a  kbourer,  is  valid. 
The  Court  decided,  in  the  first  place,  that  a  farmer  was 
not  a  person  within  the  meaning  of  the  statute  at  all, 
for  that  the  meaning  of  the  words  "  tradei?man,  artificer, 
workman,  labourer,  or  ol/ier'  person  whatsoever,"  was  to 
prohibit  the  classes  of  persons  named  and  other  persons 
ejusdem  generis,  of  a  like  denomination  ;  and  tliey  did 
not  consider  a  farmer  to  be  so  (c).  And,  secondly, 
they  held  that  even  if  the  farmer  were  comprehended 
within  the  class  of  persons  prohibited,  the  hiring  of  the 
servant  could  not  be  considered  as  work  done  in  his 
ordinary  calling,  for,  said  Mr.  J.  Bayley,  "  those  things 
which  are  repeated  daily  or  weekly  in  tlie  course  of 
trade  or  business  are  parts  of  the  ordinary  calling  of 
a  man  exercising  such  trade  or  ^business ;  but 
•-  -'  the  hiring  of  a  servant  for  a  year  does  not 
come  within  the  meaning  of  those  words." 

(c)  R.  V.  Silvester,  33  L.  J,  (M.  C.)  79. 

Sunday  without  remedy:  Jordan  v.  Moore,  10  Ind.  386.  When  both  parties 
to  a  contract  violate  the  law  in  making  it,  the  law  will  not  aid  either  to  set  it 
aside:  Greene  v.  Godfrey,  44  Me.  25.  The  fact  that  a  contract  is  signed  on 
Sunday  does  not  avoid  it,  unless  it  be  delivered  on  Sunday:  Sherman  v. 
Roberts,  1  Grant,  2(51 ;  Merrill  v.  Downs,  41  N.  H.  72  ;  Smith  v.  Foster,  lb.  215  ; 
Tucker  v.  Mowrey,  12  Mich  378.  A  contract  not  void  at  common  law  nor 
expressly  avoided  by  any  statute,  and  which  has  been  fully  executed  by  the 
parties  binds  them  although  made  on  a  Sunday.  The  delivery  of  a  deed  on 
Sunday  is  sufKcient  to  pass  the  title:  Shuman  v.  Shuman,  27  Pa.  St. 
90.— s. 

In  Dale  v.  Knepp,  98  Pa.  St.  389,  it  was  held  (following  Allen  v.  Duffy,  43 
Mich.  1,  and  disapproving  Catlett  v.  Trustees,  62  Ind.  365),  that  an  agreement 
to  subscribe  for  the  erection  of  a  church  edifice  is  a  work  of  charity,  and  may 
therefore  be  enforced,  though  made  on  Sunday.  In  Rogers  i-.  "\V.  U.  Tel.  Co., 
78  Ind.  1G9,  Elliott  C.  J.,  said,  "Courts  can  not  declare,  as  matter  of  law, 
that  the  business  of  telegraphy  is  a  work  of  necessity.  There  are,  doubtless, 
many  cases  in  which  the  sending  and  delivery  of  a  message  would  be  a  work 
of  necessity  within  the  meaning  of  our  statute.  But  we  cannot  judicially 
declare  that  all  contracts  for  the  transmission  of  telegraphic  messages  are  to 
be  deemed  within  the  statutory  exception.  Whether  the  contract  is  within 
the  exception  must  be  determined,  as  a  question  of  fact,  from  the  evidence  in 
each  particular  case." 

300 


LECT.  YII.]  ILLEGAL   CONTRACTS.  279 

The  former  of  the  two  points  decided  in  this  case 
furnishes  a  very  good  exemplification  of  the  celebrated 
rule  of  construction  as  applied  to  statutes,  namely,  that 
where  an  Act  mentions  particular  classes  of  persons,  and 
then  uses  general  words,  such  as  "  all  others^''  the  gen- 
eral words  are  restrained  to  persons  of  the  like  descrip- 
tion with  those  specified  [d).  And,  therefore,  where  a 
statute  [e]  recites  that  the  Lord's  day  is  much  broken 
and  profaned  by  carriers,  waggoners,  carters,  wainmen, 
butchers,  and  drovers  of  cattle,  and  then  enacts  that 
those  persons  (naming  them)  shall  not,  by  themselves, 
or  any  other,  travel  uj^on  the  Lord's  day,  and  the  Lord's 
Day  Act  contains  the  words  previously  recited,  it  has 
been  determined  that  the  owner  or  driver  of  a  stage 
coach  is  not  included  within  the  words  "  other  persons 
whatsoever,"  forbidden  to  exercise  his  calling  on  the 
Lord's  day.  The  same  construction  was  put  upon  the 
Lord's  Day  Act  in  a  subsequent  case,  that  of  Peate  v. 
Dicken  (/),  where  it  was  decided,  first,  that  an  attorney 
was  not  within  the  description  of  persons  intended  by 
the  statute  ;  and  secondly,  that  if  he  were,  an  agreement 
made  on  Sunday  to  become  personally  *respon-  p.>oQrvn 
sible  for  the  debt  of  a  client,  could  not  be  said  ■-  ^ 
to  fall  within  his  ordinary  calling. 

But  perhaps  the  second  point  illustrated  by  these 
cases  is  put  in  the  clearest  light  by  those  of  Drury  v. 
De  Fontaine  {g)  and  Fennell  v.  Ridler  {h),  in  the  for- 
mer of  which  cases  it  was  considered  that  the  sale  of  a 
horse  on  a  Sunday  by  a  person  not  being  a  horse-dealer, 

(d)  See  Sandiman  v.  Breach,  7  B.  &  C.  (14  E.  C.  L.  R.)  96  ;  Queen  v.  Nevill, 
8Q.  B.  (55  E.  C.  L.  R.)  452.  See  Bishop  v.  EUiott,  24  L.  J.  (Ex.)  229;  11 
Ex.  113. 

(e)  Stat.  3  Car.  1,  c.  1. 
(/)  1  Cr.  M.  &  R.  422. 
(.7)  1  Taunt.  131. 

(h)  5  B.  &  C.  (11  E.  C.  L.  R)  406. 

301 


280  ILLEGAL  CONTEACTS.       [lECT.  YII. 

was  not  void,  such  sale  not  being  within  the  ordinary- 
calling  of  the  plaintiflf;  and  in  the  second,  that  a  horse- 
dealer  could  not  maintain  an  action  upon  a  contract  for 
the  sale  and  warranty  of  a  horse  bought  by  him  on  a 
Sunday,  it  being  obvious  that,  in  doing  so,  he  was  exer- 
cising; the  business  of  his  ordinarv  callins;.  In  accord- 
ance  with  these  cases,  it  has  been  decided  that  one 
tradesman  giving  another,  on  the  Lord's  day,  a  guaranty 
for  the  faithful  services  of  a  traveller  is  not,  in  doing  so, 
exercising  his  ordinary  calling  (i)  :  and  the  same  con- 
clusion w^as  come  to  in  a  still  more  recent  case  upon  this 
subject,  where  it  was  decided  tliat  a  recruiting  officer  en- 
listing a  soldier  on  a  Sunday  is  not  executing  his  or- 
dinar}'"  calling  on  the  Lord's  day  {k). 

The  cases  in  which  the  Act  is  most  frequently  sought 
to  be  applied  are  those  of  sales,  of  which  you  may  see  a 
remarkable  instance  in  Simpson  ?;.  ^Nichols  (^. 
L  '^  J  This  was  an  action  for  goods  sold  and  delivered. 
The  defendant  pleaded  that  they  were  sold  and  deliv- 
ered by  him  to  the  plaintiff"  in  the  way  of  his  trade  on 
a  Sunday,  contrary  to  the  statute ;  the  plaintiff*  replied, 
that,  after  the  sale  and  delivery  of  the  goods,  the  defend- 
ant kept  them  for  his  own  use,  without  returning  or 
offering  to  return  them,  and  had  thereby  became  liable 
to  pay  as  much  as  they  were  worth.  This  replication 
was  considered  to  be  no  answer  at  all  to  the  plea.  A 
case  had  been  cited  in  the  argument  (m),  where  the  de- 
fendant, having  purchased  a  heifer  of  a  drover  on  a 
Sunday,  and  having  afterwards  kept  it  and  expressly 
promised  to  pay  for  it,  was  held  liable  by  virtue  of  that 


(i)  Norton  v.  Powell,  4  M.  &  Gr.  (43  E.  C.  L.  E.)  42.    See  Scarfe  r.  Morgan, 
4  M.  &  W.  270. 

(k)  Wolton  V.  Gavin,  16  Q.  B.  (71  E.  C.  L.  E.)  48. 
(l)  3  M.  &  W.  240. 

(m)  Williams  v.  Paul,  6  Bing.  (19  E.  C.  L.  E.)  653. 
302 


LECT.  VII.]  ILLEGAL   CONTRACTS.  281 

promise.  But  Mr.  Baron  Parlce  observed  {n)  that,  a3 
the  property  in  the  goods  passed  by  delivery,  the  promise 
made  on  the  following  day  to  pay  for  them  could  not 
constitute  any  new  consideration,  and  therefore  he 
doubted  whether  that  case  could  be  supported  in  law. 
Perhaps,  however,  the  Court  considered  that  case  as 
within  the  rule  mentioned,  ante,  page  *203,  and  that 
the  express  promise  there  mentioned  might  revive  the 
precedent  consideration,  which  might  have  been  enforced 
at  law  through  the  medium  of  an  implied  promise,  had 
not  the  party  been  ^exempted  by  the  positive  r-^.^^Qf^-, 
rule  of  law  forbidding  such  a  contract  on  the  L  -  -'J 
Lord's  day  (o). 

Yet,  from  the  application  of  the  Act  to  these  cases 
even  there  are  some  exceptions ;  some  created  by  the 
Act  itself,  which  permits  food  to  be  sold  in  inns  and 
cookshops  to  persons  who  cannot  be  otherwise  provided, 
and  for  the  sale  of  milk  at  certain  hours ;  others  by  10 

6  11  Will.  III.,  c.  24,  s.  14,  which  legalises  the  sale  of 
mackerel  before  and  after  divine  service;  others  by  6  & 

7  AVill.  IV.,  c.  37,  which  allows  bakers  to  carry  on  their 
business  to  a  certain  extent  and  under  certain  restric- 
tions, see  s.  14  ;  and,  indeed,  even  before  the  passing  of 
that  Act  or  of  the  34  Geo.  III.,  c.  61,  on  the  same  sub- 
ject, it  had  been  decided  that  a  baker  baking  provisions 
for  his  customers  was  out  of  the  purview  of  the  Act 
altogether,  that  being  a  work  of  necessity  (p) ;  and 
there  are  other  exceptions  created  by  other  particular 
enactments — as,  for  instance,  in  the  case  of  hackney 
carriages.^ 

(n)  Simpson  v.  Nichols,  5  M.  &  W.  702,  note. 

(o)  See  Scarfe  v.  Morgan,  4  M.  &  W.  270.     See  per  Bosanqxiet,  J.,  6  Bing.  (19 
E.  C.  L.  R.)  655. 

(p)  See  R.  V.  Q<ix,  2  Burr.  785 ;  R.  v.  Younger,  5  T.  R.  449. 

*  A  contract,  however,  for  the  sale  of  goods  made  on  Sunday,  is  not  affected 

303 


282  ILLEGAL  CONTRACTS.       [lECT.  VII. 

Another  class  of  contracts  falls  within  the  prohibi- 
tion of  tie  Acts  aimed  against  simony.  There  are  two 
statutes  on  this  subject:  the  81  Eliz.,  c.  6,  and  12  Anne, 
St.  2,  c.  12;  the  former  of  which  enacts  that  if  any 
'patron,  for  any  corrupt  consideration,  by  gift  or  promise, 
directly  or  indirectly,  shall  present  or  collate  any  per- 
son  to  any  ecclesiastical  "^'benefice  or  dignity, — 
L  ^  such  presentation  shall  be  void,  the  presentee 
shall  be  incapable  of  enjoying  the  benefice,  and  the 
Crown  shall  present  to  it(g'). 

(7)  Goldham  v.  Edwards,  24  L.  J.  (C.  P.)  189 ;  18  C.  B.  (86  E.  C.  L.  E.) 
389. 

by  the  statute,  unless  it  is  a  complete  contract  on  that  day:  Butler  v.  Lee,  11 
Ala.  885 ;  Adams  v.  Gay,  19  Vt.  358,  where  the  subject  is  elaborately  ex- 
amined. Thus,  if  the  article  was  not  to  be  delivered,  or  the  price  paid  till 
another  day,  the  contract  would  not  be,  under  the  Statute  of  Frauds,  binding 
till  that  was  done:  Bloxsome  v.  Williams,  3  B.  «&  C.  (10  E.  C.  L.  R.)  232; 
Beaumont  v.  Brengeri,  5  C.  B.  (57  E.  C.  L.  R.)  301.  So  of  a  promissory  note 
written  on  that  day,  but  not  delivered  till  another:  Lovejoy  v.  Whipple,  18 
Vt.  379 ;  Clough  v.  Davis,  9  N.  H  500.  And  although  the  consummation  of 
the  transaction  may  occur  on  Sunday,  yet  if  the  party  seeking  to  enforce  the 
rights  growing  therefrom,  had  ceased  all  his  agency  in  the  matter  before  that 
day,  there  will  be  no  invalidation  as  to  him  ;  as  where  a  case  was  submitted 
to  arbitrators  late  on  Saturday  night,  who  made  up  their  award  early  on  Sun- 
day morning,  it  was  held  that  assump'^it  might  be  maintained  on  the  award, 
for  the  plaintiff  had  no  voluntary  agency  in  consummating  the  transaction 
on  that  day  :  Sargeant  v.  Butts,  21  Vt.  101 ;  Richardson  v.  Kimball,  28  Me, 
475.— R. 

When  a  contract  for  labour  is  entered  into  on  Sunday,  and  the  contract  is 
afterwards  performed  by  the  labourer,  the  promisor  cannot  set  up  the  illegality 
of  the  contract:  Meriwether  v.  Smith,  44  Ga.  541.  The  vendor  of  property 
sold  and  delivered  on  Sunday  may  reclaim  such  property  upon  tendering  to 
the  vendee  the  price  received:  Tuckey  v.  Mowrey,  12  Mich.  378.  A  note 
dated  and  to  take  effect  on  Sunday,  but  made  and  given  on  a  previous  day  is 
valid:  Stacy  r.  Kemp,  97  Mass.  166.  A  contract  not  otherwise  invalid,  but 
void  only  because  made  on  Sunday,  is  susceptible  of  ratification:  Tucker  v. 
West,  29  Ark.  386;  Love  v.  Wells,  25  Ind.  503;  Smith  v.  Case,  2  Or.  190, 
Cmlm,  Day  v.  McAllister,  15  Gray,  433 ;  Ryno  v.  Darby,  20  N.  J.  Eq.  231 ; 
Finn  v.  Donahue,  35  Conn.  216;  Pate  v.  Wright,  30  Ind.  476 ;  Bradley  r.  Rea, 
103  Mass.  188  ;  Harrison  v.  Colton,  31  Iowa,  16.  See  Pope  v.  Lynn,  50  Me. 
83 ;  Miller  v.  Lynch,  38  Miss.  344 ;  Pike  v.  King,  16  Iowa,  49 ;  Finlay  v.  Quirk, 
9  Minn.  194 ;  Foreman  v.  Ahl,  55  Pa.  St.  325 ;  Myers  v.  Meinrath,  101  Mass. 
366 ;  Whelden  v.  Chappel,  8  E.  I.  230.— s. 

304 


LECT.  VII.]  ILLEGAL   CONTRACTS.  283 

The  other  statute  is  that  of  12  Anne,  stat.  2,  c.  12, 
sect.  2  of  which  enacts  in  effect  that  if  any  person,  for 
money  or  profit,  shall  procure  in  his  own  name,  or  in 
the  name  of  any  other,  the  next  presentation  (r)  to  any 
living  ecclesiastical,  and  shall  be  presented  thereupon, 
the  contract  shall  be  deemed  to  be  simonaical,  and  the 
presentation  is  to  devolve  upon  the  Crown. 

It  was  decided  on  the  construction  of  the  former  Act, 
that  of  Elizabeth,  very  soon  after  it  passed — that  a  con- 
tract to  purchase  a  living  actually  vacant  at  the  time  of 
the  purchase  was  a  simonaical  contract,  and  avoided  by 
the  operation  of  the  statute.  That  was  taken  for  granted 
in  Baker  v.  Rogers  (s),  which  was  decided  but  a  very 
short  time  after  the  passing  of  the  Act;  but  still,  al- 
though, after  the  statute  of  Elizabeth,  it  was  admitted, 
that  to  contract  for  the  right  to  present  to  a  church 
actually  '^'void,  was  simony,  yet  it  was  also  held,  r^oo^-i 
that  it  was  not  simony  to  purchase  the  next 
presentation  at  a  time  when  the  church  was  full,  and  it 
was  therefore  uncertain  when  that  presentation  would  ac- 
crue [t).  And  so  the  law  continues  to  be  to  this  day, 
with  a  qualification  introduced  by  the  statute  of  Anne, 
the  nature  of  which  I  am  about  to  explain  to  you. 

The  statute  of  Elizabeth,  and  the  decisions  upon  it, 
had,  as  I  have  just  said,  established  two  points ;  first, 
that  the  right  to  present  to  an  actually  void  benefice 
could  not  be  purchased ;  secondly,  that  the  right  of  next 
presentation  might  be  so,  provided  that  the  living  was 

(r)  The  purchase  of  an  estate  for  life  in  an  advowson  is  not  the  purchase  of 
a  "next  presentation"  or  "next  avoidance"  within  the  meaning  of  this  enact- 
ment, though  there  be  only  one  avoidance  or  vacancy  of  the  living  during  the 
lifetime  of  tlie  cestui  que  vie,  and  the  purchaser  in  point  of  fact  gets  the  next 
presentation  and  presents  himself.  What  he  purchases  is  a  freehold  interest 
in  the  advowson  to  which  the  statute  of  Anne  does  not  apply.  Walsh  t» 
Bishop  of  Lincoln,  L.  R.  10  C.  P.  518,  44  L.  J.  (C.  P.)  244. 

(s)  Cro.  Eliz.  788. 

{t)  See  Cro.  Eliz.  685,  Smith  v.  Shelborne. 

20  305 


284  ILLEGAL  CONTKACTS.       [lECT.  VII. 

full  at  the  time  of  the  contract.  Certain  clergymen 
took  advantage  of  this  state  of  the  law  to  purchase  next 
presentations,  with  the  intention  of  presenting  them- 
selves upon  the  occurrence  of  a  vacancy.  This  practice 
being  considered  highly  indecorous,  the  statute  of  the 
12th  of  Anne  was  passed  to  put  a  stop  to  it,  and  that 
Act  renders  it  illegal  and  simonaical  on  the  part  of  a 
clergyman  to  purchase  the  next  presentation  to  a  living 
actually  full,  and  to  present  himself,  leaving  the  right 
of  a  layman  to  do  so  just  as  it  stood  before  under  ihe  Act 
of  Elizabeth. 

The  operation  of  these  two  statutes  was  elaborately 
discussed — first  in  the  King's  Bench  and  subsequently 
n.^.f^o;--|  in  the  House  of  Lords — in  the  great  *case  of 
Fox  V.  Bishop  of  Chester  {u).  In  that  case 
the  incumbent  of  a  living  was  exceedingly  ill,  and  upon 
his  death  bed.  The  proprietor  of  the  advowson  and 
another  person  being  aware  of  tliis,  and  believing  that 
his  death  was  near  at  hand,  agreed  for  the  sale  of  the 
next  presentation,  and  in  order  to  carry  the  agreement 
into  effect,  executed  a  deed  a  few  hours  only  before  his 
death,  which  purported  to  convey  the  advowson  to  the 
vendee  for  ninety-nine  years,  but  contained  a  proviso 
for  reconveyance  as  soon  as  one  presentation  should 
have  been  made.  After  the  death  of  the  incumbent,  the 
vendee  under  this  deed  presented  a  clergyman  who  was 
in  no  way  privy  to  the  bargain ;  and,  consequently,  the 
only  question  was  as  to  the  legality  of  the  bargain  itself, 
and  it  was  strongly  urged  that  it  was  void ;  for,  it  waa 
contended,  that  the  transaction  was  a  fraud  upon  the 
statute  of  Elizabeth,  since,  under  the  circumstances,  the 
living  was  for  every  'practical  purpose  vacant  at  the 
time  of  the  contract,  although  it  was  possible  that  the  in- 


{«)  2  B.  &  C.  (9  E.  C.  L.  K.)  635 ;  and  6  Bing.  (19  E.  C.  L.  R.)  3. 

306 


LECT.  til]  illegal   CONTRACTS.  285 

cumbent  misilit  linjrer  on  for  a  few  hours  after  the  de- 
livery  of  the  deed.  And  such  was  tlie  opinion  of  the 
Court  of  King's  Bench,  who  delivered  their  judgment 
accordingly.  But  it  was  carried  to  the  House  of  Lords, 
and  there  reversed  according  to  the  unanimous  opinion 
of  the  other  judges,  and  of  Lord  Eldon,  who  was  at 
that  time  Chancellor. 

Connected  with,  and  indeed,  forming  a  part  of 
*this  branch  of  the  subject,  are  the  decisions  pj-oo^n 
with  regard  to  resignaiion  bonds,  the  history  of  ^  ^ 
which  is  extremely  curious. 

It  had  become  a  very  common  practice  when  the 
patron  of  a  living  had  a  son  intended  for  the  church, 
and  the  living  happened  to  become  vacant  during  the 
young  man's  minority,  for  the  patron  to  present  a  clergy- 
man, who  entered  into  an  agreement  to  resign  as  soon 
as  the  patron's  son  should  be  of  age  to  hold  the  prefer- 
ment. These  contracts  were  usually  made  by  way  of 
bond,  conditioned  to  resign  on  the  contingency  happen- 
ing, and  which,  from  the  nature  of  the  transaction,  ac- 
quired the  name  of  Resignalion  Bonds.  At  first  a 
doubt  was  entertained  whether  these  bonds  did  not 
offend  against  the  provisions  of  the  Act  of  Elizabeth, 
since  the  clergyman  who  executed  such  an  instrument 
could  hardly  be  said  to  have  been  presented  gratuitously, 
inasmuch  as  he  agreed  to  bind  himself  in  a  penal  sum 
as  a  condition  precedent  to  his  obtaining  the  preferment, 
and  inasmuch  as,  in  the  case  of  his  refusing  to  resign, 
and  allowing  the  penal  sum  to  be  forfeited,  he  actually 
would  have  given  up  that  sum  of  money  for  the  sake 
,  of  holding  the  living.  However  in  Johnes  v.  Law- 
rence [v)  first  the  King's  Bench,  and  then  the  Ex- 
chequer Chamber,  decided  that  such  an  instrument  was 
good  :    and   the  reason   assigned  for  this  was,  that   a 

(r)  Cro.  Jac.  248. 

307 


286  ILLEGAL   CONTRACTS.  [lECT.  VII. 

father  is  bound  by  *nature  to  provide  for  his 
*-  -'  son  ;  and  therefore  that,  though  the  clergyman 
"was  presented  under  an  agreement,  yet  it  was  not  an 
agreement  upon  any  corrupt  consideration,  but  more  re- 
sembled the  case  of  a  bond  to  resign  in  case  of  non- 
residence  or  of  taking  any  other  living,  which  had  both 
been  decided  to  be  for  the  good  of  the  public,  and  free 
from  any  objection  on  the  score  of  simony.  But  still 
another  question  remained,  for  in  course  of  time  it 
became  usual  to  extract  from  the  clergyman  a  bond  con- 
ditioned to  resign — not  on  the  patron's  son  or  any  other 
particular  person  becoming  qualified  to  hold  the  living 
— but  to  resign  generally  at  the  request  of  the  patron 
"whenever  he  should  think  proper  to  signify  it.  Tiiese 
bonds,  which  were  called  General  Besignation  Bonds, 
stood,  it  is  obvious,  on  a  different  footing  irom  the  for- 
mer ones,  for  they  reduced  the  clergyman  to  a  state  of 
complete  dependence  on  the  will  and  pleasure  of  the 
patron.  However,  in  Ffytche  v.  The  Bishop  of  Lon- 
don {x),  which  was  finally  decided  in  the  year  1783,  first 
the  Court  of  Common  Pleas,  and  then  that  of  the 
King's  Bench,  decided  that  such  bonds  were  valid.  But 
on  a  writ  of  error  to  the  House  of  Lords,  that  decision 
was  reversed  by  a  majority  of  lay  peers  voting  against 
the  expressed  opinion  of  a  majority  of  the  judges. 
After  that  period  there  was  for  a  long  time  a  strong 

^inclination  on  the  part  of  the  Courts  to 
•-  ^  confine  the  authority  of  that  decision  of  the 
peers  to  cases  precisely  similar  to  itself,  as  you  will 
Bee  from  the  judgments  in  Bagshaw  v.  Bosley  (3/), 
Partridge  v.  Whiston  (z),  Newman  v.  Newman  (a). 
However,  at  last,  in  the  year  1826,  the  matter  camej 
again    before    the    House   of    Lords   in    the    case   ofl 

(x)  1  East.  487.  (z)  lb.  359. 

(y)  4  T,  R.  78.  (o)  4  M.  &  Sel.  66. 

308 


LECT.  YII.]  ILLEGAL   CONTRACTS.  288 

Fletclier  v.  Lord  Sondes  {b),  under  the  following  cir- 
cumstances. 

An  action  was  brought  in  the  King's  Bench  by  Lord 
Sondes  against  the  Reverend  William  Fletcher  upon  a 
bond  of  £12,000.  The  condition  was  not  to  commit 
dilapidations,  and  to  resign  within  a  month  after  request 
the  rectory  of  Kettering,  in  the  county  of  Northamp- 
ton, to  which  Lord  Sondes  then  presented  him,  in  order 
that  his  Lordship  might  be  enabled  to  present  one  of 
two  younger  brothers  whose  names  the  condition  speci- 
fied. Upon  this  bond,  judgment  was  allowed  to  go  by 
default;  and  a  writ  of  error  being  brought  in  the 
House  of  Lords,  the  judges  were  called  on  to  deliver 
their  opinions,  which  they  all  did,  with  the  exception  of 
Mr.  J.  Bayley,  Mr.  J.  Holroyd,  and  Mr.  J.  Littledale. 
Tliere  was  a  difference  of  opinion  amongst  them,  and 
they  delivered  their  opinions  therefore  seriatim — the 
judges  who  thought  the  bond  valid  being,  L.  C.  J.  Besty 
Mr.  J.  Barrough,  and  Mr.  J.  Gaselee  ;  those  who  thought 
it  invalid  being  the  L.  C.  J.  ^'Abbott,  C.  B. 
Alexander,  Mr.  J.  J.  A.  Park,  B.  Garrow,  B.  ^  ^  -• 
Graham,  and  B.  Hullock.  The  Chancellor  agreed  with 
the  niMJority,  and  the  judgment  of  the  Court  below  in 
favour  of  the  plaintiff  was  reversed.  Now,  the  bond  in 
this  case  was  not  a  general  resignation  bond.  It  was  a 
special  one  in  favour  of  the  obligee's  two  brothers.  And 
the  effect  of  this  decision  was,  not  only  to  establish  the 
decision  in  The  Bishop  of  London  v.  Ffytche,  but  to 
overturn  the  decisions  which  had  previously  taken  place 
in  favour  of  special  resignation  bonds,  and  render  all 
bonds  conditioned  for  the  resignation  of  a  clergyman 
illegal.  But  as  the  consequences  of  this  would  have 
been  exceedingly  hard  upon  persons  who  had  executed 
Bpecial  resignation  bonds  at  the  time  when  they  were 

(6)  3  Bing.  (11  E.  C.  L.  R.)  501,  in  Dom.  Proc. 

309 


289  ILLEGAL  CONTRACTS.       [lECT.  VII. 

looked  upon  as  legal,  the  Archbishop  of  Canterbury 
immediately  brought  in  a  bill,  which  he  laid  on  the 
table  of  the  House  as  soon  as  the  Lords  had  assented  to 
the  Chancellor's  motion  to  reverse  the  judgment  of  the 
King's  Bench  in  Fletcher  v.  Lord  Sondes,  and  which 
afterwards  passed  into  law.  It  is  the  7  &  8  Geo.  IV., 
c.  25,  which  confirms  such  bonds  and  contracts  if  made 
before  the  9th  of  April,  1827,  the  day  of  the  decision 
in  Fletcher  v.  Lord  Sondes,  for  resignation  in  favour  of 
one,  or  one  of  two  specified  persons.  And  thus  the  law 
continued ;  all  general  bonds  of  resignation  being  void, 
and  special  ones  in  favour  of  one  person,  or  one  of  two 
persons,  good  if  before  April  9th,  1827,  and  void  if 
r=5=9Qm  subsequent  to  that  *day ;  until  the  passing  of 
the  9  Geo.  IV.,  c.  94,  wdiich  rendered  special 
resignation  bonds  and  contracts  entered  into  after  the 
passing  of  that  Act  good,  if  in  favour  of  one,  or  one  of 
two  persons  standing  in  the  relation  of  uncle,  son,  grand- 
son, brother,  nephew,  or  grand-nephew  to  the  patron,  by 
blood  or  marriage. 

Thus  stands  this  curious  branch  of  law.  [Resigna- 
tion contracts  prior  to  April  9th,  1827,  being  governed 
by  7  &  8  Geo.  IV.,  c.  25,  conjointly  with  the  statutes 
of  Elizabeth  and  Anne;  between  that  day  and  the 
passing  of  9  Geo.  IV.,  c.  94,  by  the  statutes  of  Anne 
and  Elizabeth,  as  explained  in  Fletcher  v.  Lord  Sondes  ; 
and,  subsequently,  by  the  9  Geo.  IV.,  c.  94,  in  c-onj unc- 
tion with  the  statute  of  Anne  and  Elizabeth. 

Another  class  of  illegal  contracts,  of  not  unusual 
occurrence,  consists  of  those  which  are  invalid,  on  the 
ground  that  they  amount  to  illegal  attempts  to  charge 
an  ecclesiastical  benefice.  The  obvious  impolicy  of 
allowing  the  provision  made  by  law  for  the  support  of 
the  church  to  be  diverted  to  secular  purposes,  occasioned 
the  enactment  of  the  13  Eliz.,  c.  20,  which  directs  that 
310 


LECT.  VII.]  ILLEGAL   CONTRACTS.  290 

all  chargings  of  benefices  other  than  rents  reserved 
upon  the  leases  which  the  law  allows  to  be  made  should 
be  void.  This  act  was  repealed  by  43  Geo.  III.,  c.  84, 
but  revived  again  by  the  repeal  of  the  latter  Act  by  57 
Geo.  III.,  c.  99  (c).  The  cases  have  mostly  arisen  on 
*contracts  made  for  the  purpose  of  charging  r*9Qi-i 
an  annuity  granted  by  a  clergyman  upon  his 
benefice.  These  contracts  are  held  void  {d),  and, 
where  it  appears  on  the  face  of  a  warrant  of  attorney 
given  by  a  clergyman,  that  his  intention  in  executing 
it  was  that  the  benefice  should  be  sequestered  towards 
the  liquidation  of  an  annuity  or  other  charge,  the 
Courts  will  set  it  aside  {e)  ;  but  they  will  not  do  so 
where  no  intention  to  create  such  a  charge  appears  on 
the  face  of  the  warrant  of  attorney  itself,  though  its 
effects  may  and  probably  will  be  to  occasion  an  execu- 
tion to  issue,  under  which  the  profits  of  tlie  benefice 
will  be  sequestered  (/). 

A  contract  may  also  be  illegal  by  contravening  the 
Statute  wdiich  prescribes  a  uniformity  of  weights  and 
measures  in  the  United  Kingdom.  These  are  now 
regulated  by  41  &  42  Vict.,  c.  49  (Weights  and  Meas- 
ures Act,  1878),  s.  19  of  which  expressly  makes  void 
all  contracts  not  made  in  terms  of  imperial  weights  or 
measures  wliere  weight  or  measure  is  agreed  for.  S. 
21,  however,  contains  an  ^exception  in  favour  r:::9qo-| 
of  contracts  in  metric  weights  or  measures,  or 

(e)  Shaw  v.  Pritchard,  10  B.  &  C.  (21  E.  C.  L.  R.)  241.  See  1  &  2  Vict.  c. 
106;  Hawkins  v.  Gathercole,  6  De  G.  M.  &  G.  1 ;  24  L.  J.  (Cli.)  332. 

{d)  See  Mouys  v.  Leake,  8  T.  R.  411 ;  Alchin  v.  Hopkins,  1  Bing.  IST.  C. 
(27  E.  0.  L.  R.)  99;  Flight  v.  Salter,  1  B.  &  Ad.  (20  E.  C.  L.  R.)  673; 
Walker  v.  Crofts,  20  L.  J.  (Ex.)  257  ;  6  Ex.  1,  S.  C. 

(e)  Saltmarshe  i-.  Hewett,  1  A.  &  E  (28  E.  C.  L.  R.)  812 ;  Newland  v.  Watkins, 
9  Bing.  (23  E.  C.  L.  R  )  113.     See  Hawkins  r.  Gathercole,  24  L.  J.  iCh.)  332, 

(/)  Bendry  ;•.  Price,  7  Dowl.  753;  Colebrook  v.  Layton,  4  B.  &  Ad.  (24  E. 
C.  L.  R.)  578 ;  Moore  v.  Ramsden,  7  A.  &  E.  (34  E.  C.  L.  R.)  898 ;  Sloane  v. 
Packman,  11  M.  &  W.  770. 

311 


292  ILLEGAL  CONTRACTS.       [lECT.  VH. 

where   decimal   subdivisions  of   imperial   weights  and 
measures  are  used  [g). 

Tliere  is  also  a  class  of  contracts  which  are  illegal  as 
being  made  by  such  a  company  as  is  declared  illegal  under 
s.  4  of  the  Companies  Act,  1862  (25  &  26  Vict.,  c.  89). 
That  section  provides  that  "  no  company,  association,  or 
partnership  consisting  of  more  than  ten  persons  shall  be 
formed,  after  the  commencement  of  this  Act,  for  the  pur- 
pose of  carrying  on  the  business  of  banking,  unless  it  is 
registered  as  a  company  under  this  Act,  or  is  formed  in 
pursuance  of  some  other  Act  of  Parliament,  or  of  letters 
patent ;  and  no  company,  association,  or  partnership  con- 
sisting of  more  than  twenty  persons  shall  be  formed,  after 
the  commencement  of  this  Act  (A)  for  the  purpose  of  car- 
rying on  any  other  business  that  has  for  its  object  the 
acquisition  of  gain  by  the  company,  association,  or  part- 
nership, or  by  the  individual  members  thereof,  unless  it  is 
registered  as  a  company  under  this  Act,  or  is  formed  in 
r*9Q^l  pursuance  of  some  other  Act  of  Parliament,  '"or  of 
letters  patent,  or  is  a  company  engaged  in  work- 
ing mines  within  and  subject  to  the  jurisdiction  of  the 
stannaries."  Under  this  section  a  loan  society  which  con- 
sisted of  more  than  twenty  members,  and  whose  object 
was  to  lend  money  at  interest  to  some  of  its  members, 
whilst  other  members  furnished  the  money  so  to  be  lent 
and  received  interest,  was  held  illegal.  For  although  the 
society  itself  mightnot  gain,  yet  the  lending  members  did, 
and  each  member  had  the  possibility  of  acquiring  a  gain. 
It  therefore  followed  that  the  society  itself  being  illegal, 

[g]  This  statute  would  seem  not  to  apply  to  contracts  to  be  perfonnpd  abroad, 
but  only  to  contracts  where  the  goods  are  to  be  weighed  or  measured  in  this 
country.  See  Eosseter  v.  Cahlmann,  8  Ex.  361 ;  22  L.  J.  (Ex.)  128,  a  deci- 
sion under  5  «&;  6  Will.  4,  c.  63,  now  repealed. 

(//)  See,  as  to  what  amounts  to  a  company  formed  before  the  commencement 
of  the  Act,  and  which  therefore  does  not  require  registration  under  it,  Shaw 
V.  Simmons,  12  Q.  B.  D.  117 ;  53  L.  J.  (Q.  B.j  29. 

312 


LECT.  VII.]  ILLEGAL    CONTEACTS.  293 

the  contract  of  loan,  under  which  the  money  was  both 
advanced  and  made  repayable  in  pursuance  of  the  rules 
of  the  society  was  illegal  also.  It  was  held,  therefore, 
that  neither  the  society  nor  its  trustee  could  recover 
the  money  so  lent,  and  that  promissory  notes  given  to 
secure  such  advances  were  equally  invalid  as  being 
given  for  an  illegal  consideration  (i). 

*  I  have  now  touched  upon  the  classes  of  con-  r:::9q .-, 
tracts  invalidated  by  express  enactment,  which  •-"^94] 
are  of  most  frequent  practical  occurrence,  and  it  remains 
to  mention  one  point  arising  from  a  statute  of  the  last 
reign,  which  has  done  away  with  a  distinction  which  was 
formerly  found  an  exceedingly  troublesome  one,  and 
frequently  very  unjust  in  its  operation. 

You  are  probably  aware  that  the  general  rule  of  the 
law  of  England  was,  until  altered  by  recent  legislation, 
that  a  contract  was  not  assipiable;  that  is,  that  a  man 
who  had  entered  into  a  contract  could  not  transfer  the 
benefit  of  that  contract  to  another  person,  so  as  to  put 
that  other  person  in  his  own  place,  and  entitle  him  to 
mamtain  an  action  upon  it  in  case  of  its  non-perform- 
ance. That  rule  has  indeed  been  altered  by  the  Judica- 
ture Act  of  1873,  and  an  assignment  of  a  contract  or 
other  chose  in  action  is  now  valid  if  made  in  accordance 
with    the   provisions    of  that    Act  {k).     But   you    are 

ft)  Shaw  .Benson,  11  Q.  B.  D.  (C.  A.)  563;  52  L.  J.  (Q.  B.)  575.  This 
ca^e  follows  Jennings  v.  Hammond,  9  Q.  B.  D.  225;  51  L.  J.  (Q  B  )  493  • 
w  uch  IS  a  similar  decision  in  fhe  case  of  an  unregistered  benefit  society  with 
like  ol.j.cts  to  those  of  the  society  mentioned  in  the  text.  See  also"  Tn  re 
l^adstow  Total  Loss  and  Collision  Assurance  Association,  20  Ch   Div   137  •  51 

t  T    T '!rV'f^:/''  r  ^°"'^  ^^'^''^'  -^''""'^'^  Steamship  Co.,  2  C  h.  Div.  763  ; 

!  (Ch.)  /7,  where  the  companies  were  ^eld  illegal,  not  being  registered 
under  s.  4.  In  Smith  v.  Anderson,  15  Ch.  Div.  247  ;  50  L.  J  (Ch.)  39-  an 
investment  trust  for  a  number  of  certificate  holders,  the  trustees  being  under 
20  in  number,  was  held  not  to  be  within  the  meaning  of  s.  4,  and  therefore 
legal,  though  unregistered. 

(/;)  By  36  &  37  Vict.  c.  66  (Supreme  Court  of  Judicature  Act   1873)  s  25 
BUb-sec.  6,  "  Any  absolute  assignment,  by  writing  under  the  hand  of  the  assignor 

313 


295  ILLEGAL  CONTRACTS.       [lECT.  VII. 

-J.  *probably  also  aware  that  there  are  some  con- 

L  -^  tracts  which,  irrespectively  of  the  Judicature 
Act,  1873,  are,  by  the  operation  either  of  a  statute  or 
of  some  peculiar  rule  of  commercial  law,  exempted  from 
the  operation  of  the  above  rule,  and  rendered  trans- 
ferable in  the  same  way  as  any  other  property  from  man 
to  man.^ 

Such  are  bills  of  exchange,  which,  by  the  law  mer- 
chant are  transferable  by  endorsement,  if  payable  to 
order;  by  delivery,  if  payable  to  bearer.      Such,  too, 

(not  purporting  to  be  by  way  of  charge  only),  of  any  debt  or  other  legal  chose 
in  action,  of  which  express  notice  in  writing  shall  have  been  given  to  the 
debtor,  trustee,  or  other  person  from  whom  the  assignor  would  have  been  enti- 
tled to  receive  or  claim  such  debt  or  cliose  in  action,  shall  be,  and  be  deemed 
to  have  been  effectual  in  law  (subject  to  all  equities  which  would  have  been 
entitled  to  priority  over  the  right  of  the  assignee  if  this  Act  had  not  passed), 
to  pass  and  transfer  the  legal  right  to  such  debt  or  chose  in  action  from  the 
date  of  such  notice,  and  all  legal  and  other  remedies  for  the  same,  and  the 
power  to  give  a  good  discharge  for  the  same,  without  the  concurrence  of  the 
assignor."  See  also  ante,  pp.  *31,  *238.  There -may  be  a  valid  assignment  of  a 
"  debt  or  other  legal  chose  in  action  "  within  the  meaning  of  this  enactment, 
although  there  is  nothing  actually  due  at  tlie  time  of  the  assignment:  Brice 
f.  Bannister,  3  Q.  B.  D.  569  ;  47  L.  J.  (Q.  B.)  722  ;  Buck  v.  Robson,  3  Q.  B.  D. 
686;  48  L.  J.  (Q.  B.)  250;  Walker  v.  Bradford  Old  Bank,  12  Q.  B.  D.  511; 
63  L.  J.  (Q  B.I  280.  See  also  as  to  what  does  or  does  not  amount  to  an  abso- 
lute assignment  not  purporting  to  be  by  way  of  charge  only,  Burlinson  v.  Hall, 
12  Q.  B.  D.  347  ;  53  L.J.  (Q.  B.)  222 ;' National  Provincial  Bank  v.  Harle,  6 
Q.  B.  D.  627 ;  50  L.  J.  (Q.  B.)  437 ;  and  for  an  instance  of  an  assignment  of 
the  benefit  of  a  contract  subject  to  equities  as  between  the  assignor  and  the 
contractee,  see  Young  v.  Kitchin,  3  Ex.  Div.  127  ;  47  L.  J.  (Q.  B.,  etc.)  579. 
The  notice  of  the  assignment  need  not  necessarily  be  given  in  the  life  tim*  of 
the  assignor  :   Walker  v.  Bradford  Old  Bank,  supra. 


'  Corporation  bonds  payable  to  bearer,  though  under  seal,  have  the  qualities 
ot  negotiable  instruments:  Mercer r.  Hacket,  1  Wall.  83;  Gelpckei'.  Dubuque, 
lb.  175;  Meyer  v.  Muscatine,  lb.  384;  Connecticut  Ins.  Co.  J.Cleveland  R.  R. 
Co.,  41  Barb.  9;  New  Albany  Plank  Road  Co.  v.  Smith,  23  Ind.  353.  Claims 
for  property,  and  for  tort  done  to  property,  are  assignable,  and  such  assign 
ment  may  be  by  parol :  Jordan  v.  Gillen,  44  N.  H.  424 ;  Lazard  v.  Wheeler, 
22  Cal.  139.  The  assignment  of  a  debt  may  be  by  parol,  or  may  be  inferred 
from  the  conduct  and  acts  of  the  parties :  Spain  v.  Hamilton,  1  V\  all.  604.  A 
right  of  entry  for  condition  broken  it  not  assignable :  Warner  v.  Bennett,  31 
Conn.  468  — s, 
314 


LECT.  VII.]  ILLEGAL   CONTEACTS.  295 

are  promissory  notes,  which,  by  the  statute  3  &  4  Anne, 
c.  9,  were  phiced  on  the  same  footing  as  bills  of  ex- 
change (/).  Now,  where  some  one  of  these  "^in-  piioQft"! 
struments  had  been  made  upon  an  illegal  con- 
sideration :  where,  for  instance,  a  bill  of  exchange  was 
accepted  for  an  illegal  gambling  debt,  it  is  obvious  that 
no  action  could  be  maintained  between  the  original 
parties  to  it;  for  instance,  in  the  case  I  have  just  put, 
by  the  drawer  of  such  a  bill  against  the  acceptor  of  it ; 
for,  as  betvveen  them,  it  is  the  common  case :  they  both 
knew  of  the  illegality,  and  nevertheless,  with  their  eyes 
023en,  made  it  the  consideration  of  their  contract.  But 
where  the  instrument  had  gone  out  of  the  hands  of  the 
person  to  whom  it  was  originally  given,  and  had  got 
into  the  hands  of  some  third  person,  the  case  is  very 
much  altered ;  for  he  might  not,  and  probably  did  not 
know  of  any  illegality;  and  if  he  did  not,  it  was  hard 
that  he  should  lose  the  benefit  of  that  for  which  he  had 
paid,  in  consequence  of  the  illegal  act  of  other  persons, 
in  which  he  did  not  participate,  and  of  which  he  did  not 
know.  For  instance,  to  take  again  the  same  example : 
A.  loses  £100  to  B.  at  whist,  and  accepts  a  bill  for  the 
amount.  If  B.  afterwards  sues  A.  on  that  bill,  and  A. 
pleads  the  illegality,  this,  though  not  in  conformity  with 
the  principles  of  honour,  cannot  be  said  to  be  a  hard- 
ship upon  B.,  for  he  knew  when  he  sat  down  to  play, 
and  he  knew  when  he  drew  the  bill,  that  he  could  not 
enforce  such  a  demand.  But  suppose,  instead  of  him- 
self suing  on  the  acceptance,  he  had  "^'procured 
C.  to  discount  it,  and  had  endorsed  it  to  him,  L  -  O 
and  C.  had  paid  full  value  for  it,  and  knew  nothing  of 
the  gaming  debt  for  which  it  was  given,  in  such  a  case 

(1)  The  statute  of  Anne  has  been  repealed  hy  45  &  46  Vict.  c.  61  (Bills  of 
Exchange  Act,  1882),  s.  96,  Sch,  II. ;  of  which  Act  see  Part  IV.  ss.  83-89,  as 
to  Promissory  Notes ;  and  s.  31,  as  to  the  transfer  of  Bills. 

315 


297  ILLEGAL  CONTRACTS.       [lECT.  YH. 

it  would  be  an  exceedingly  hard  thing  indeed  to  prevent 
C.  from  recovering  the  amount  from  the  acceptor.  Yet, 
notwithstanding  this,  there  were  till  hitely  several  (ases 
in  which  he  would  have  been  precluded  from  doing  so.^ 
The  law  stood  thus : — Whenever  illegality  depended 
on  tlie  common  law,  or  on  an  Act  of  Parliament  which 
did  not  in  express  terms  render  the  security  void,  there 
the  Courts  applied  the  rule  which  reason  and  justice 
dictate,  and  held  that  the  person  who  had  given  value 
for  tlie  security,  and  had  t^iken  it  without  notice  that  it 
was  affected  by  an  illegality,  was  entitled  to  recover 
u})on  it.  Thee  were,  however,  some  cases  in  which,  by 
the  positive  enactments  of  particular  statutes,  the  se- 
curity was  rendered  vAd.  Such,  for  instance,  was  an 
acceptance  of  the  description  I  have  just  supposed, 
given  for  a  gaming  debt.  Such,  also,  at  one  period,  was 
a  bill  or  note  given  upon  an  usurious  consideration. 
But  the  hardship  in  the  case  of  usury  was  found  so 
great,  that  a  particular  Act  (58  Geo.  III..,  c.  93)  was 
j)assed  in  order  to  put  an  end  to  it.  And  at  length, 
Stat.  5  &  G  Will.  IV.,  c.  41,  has  altogether  abolished  the 
distinction  and  the  grievances  which  it  occasioned,  by 
enacting  that  such  instruments  shall  be  no  longer  void^ 
but  shall  be  deemed  and  taken  to  have  been  given  for 
r=i=9Qm  ^"  'Hllegal  consideration;  the  consequence  of 
which  is,  that  they  are  still  void  as  between 
the  original  parties,  and  also  as  against  all  persons  who 
have  taken  them  with  the  notice  of  illegality,  or  after 
they  had  become  overdue,  or  without  giving  value  for 
them ;  but  good  in  the  hands  of  every  person  who  has 

*  These  cases  were  Bowver  v.  Bampton,  2  Str.  1155;  Peacock  v.  Rliodes,  2 
Dousl.  636  ;  Lowe  v.  Waller,  lb.  736  ;  AcUIand  v.  Pearce,  2  Camp.  599.  The 
words  of  the  usury  and  gaming  acts  were  tliought  too  strong  to  be  got  over, 
and  the  law  has  been  held  the  same  way  under  similar  statutes  on  this  side  of 
the  Atlantic:  Unger  v.  Boas,  13  Pa.  St.  C92;  Lucas  v.  Waul,  12  Sm.  &  M. 
157. — R. 

316 


I 


LECT.  yil]  illegal  contkacts.  298 

given  value,  and  taken  the  instrument,  before  it  was  due 
and  bond  fide} 

Although,  since  the  passing  of  this  statute,  many 
alterations  have  been  made  in  the  law  of  gaming,  yet 
the  Stat.  5  &  Q  Will.  IV.,  c.  41,  is  still  in  force  (w),and 
the  law  is  still  as  just  described. 

(m)  8  &  9  Vict.  c.  109,  s.  15.  See  Bayley  on  Bills,  by  Dowdeswell,  524.  It 
has  been  held  that  bonds  are  within  the  equity  of  this  statute:  Hawker  v.  Hal- 
liwell,  8  Sm.  &  Gifi:  194  ;  25  L.  J.  Ch.  558. 


'  The  provisions  of  the  statute  58  Geo.  III.,  c.  98,  were  adopted  in  the  New 
York  Revised  Statutes,  v.  1,  772,  ^  5,  under  which  act  it  has  been  obviously 
held,  that  as  soon  as  the  defendant  shows  there  has  been    usury  between   the 
prior  parties  he  casts  on   the  plaintiff  the  burden  of  proving  that  he  is   a 
liolder  for   value:  Wyat  r.  Campbell,  M.  &   M.   80;  Hackley   r.  Sprague,  10 
Wend.  113;  Young   v.  Berkley,  2  N.  H.  410;  Williams  v.  Little,  11   lb.  66; 
Hanrick  v.  Andrews,  9  Port.  10  ;  as  is  the  case  in  every  instance  where  fraud, 
duress,  or  illegality  is  shown  between  the  prior  parlies:  Munroe  v.  Cooper,  5 
Pick.  412;  Vallett  ?•.  Parker,  6  Wend.  615  ;  Beltzhoover  v.  Blackstock,  3  Watts, 
26  ;  and  it  seems  at  one  time  to  have  been  thought  that  if  the  defendant  could 
prove  want  or  failure  (not  an  illegality)  of  consideration  between    the   piior 
parties,  this  would  throw  on  the  plaintiff  the  burden  of  proving  himself  a 
holder  for  value:  Grant  ?;.  Vaughan,  3  Burr.  1516;  Paterson  v.  Hardacre,  4 
Taunt.  114 ;  De  la  Chaumette  v.  Bank  of  England,  9  B.  &  C.  (17  E.  C.  L.  E.) 
208;  Heath  v.  Sansom,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  291 ;  but  in  Whitaker  v. 
Edmunds,  1    Moo.  &  Rob.  366  Patterson,  J.,   said,    "  Since   the   decision  in 
Heath  r.  Sansom  (2  B.  &  Ad.  291),  the  consideration  of  the  judges  has  been  a 
good  deal  called  to  the  subject,  and  the  prevalent  opinion  amongst  them  is, 
that  the  courts  have  of  late  gone  too  far  in    restricting  the   negotiability  of 
bills  and  notes.     If,  indeed,  the  defendant  can  show  that  there  has  been  some- 
thing of  a  fraud  in  the  previous  steps  of  the  transfer  of  the  instrument,  that 
throws  on  the  plaintiff  the  necessity  of  showing  under  what  circumstances  he 
became  jiossessed  of  it ;  so   far  I   accede  to   the  case  of  Heath  v.  Sansom,  for 
tnere  were  in  that  ca,se  circumstances  raising  a  suspicion   of  fraud;  but  if  I 
added  on  that  occasion  that  even  independently  of  these  circumstances  of  sus- 
picion, tlie  holder  would  have  been  bound  to  show  the  consideration  which  he 
gave  for  the  bill,  merely  because  there  was  an    absence   of  consideration    as 
between  the  previous  parties  to  the  bill,  I  am   now   decidedly   of  an    opinion 
that  such  doctrine  was  incorrect."     The  opinion  thus  expressed  has  since  been 
confirmed  in  many  cases.    See  also  Heydon  v.  Thompson,  1  A.  &  E.  (28  E.  C.  L. 
R.)  210  ;  Low  v.  Chifney,  1  Ring.  N.  C.  (27  E.  C.  L.  R.)  267  ;  Knight  v.  Pugb, 
4  W.  &  S.  448,  where  the  reason  for  the  change  of  decision   is  thus  clearly 
given.     "  In  cases  other  than  those  of  negotiable  notes  obtained  or  put  in  cir- 
culation by  fraud  or   undue   means,  the   maker,   by  its   negotiable   character, 
agrees  that  the  payee  shall  put  it  in  circulation.    He  has  no  right,  therefore, 

317 


298  ILLEGAL  CONTRACTS.       [lECT.  VII. 

There  is  one  other  point  which  I  will  notice  before 
altogether    leaving   the   head   of    illegality.      I    have 
hitherto  spoken  of  illegality  as  avoiding  a  contract,  and 
of  course  operating  by  way  of  defence  to  any  action 
brought  upon  the  contract  which  it  affects.     But  put 
the  case  that  an  illegal  contract  has  been  in  part  per- 
formed— that  money,   for  instance,  has  been   paid  in 
pursuance  of  it — no  action  will  lie  to  recover  that  money 
back   again.     At  an  early  period  of  the   law   it   was 
thought  that  such  an  action  might  be  perhaps  main- 
tainable upon  the  ordinary  principle,  that  an  action  will 
lie  to  recover  back  money  which  has  been  paid  on  a 
V^-9QQ-\    consideration  *which  has  failed.     Thus,  for  in- 
stance, in  the  common  case  of  an  insurance, 
supposing  that  I  insure  a  ship  during  a  voyage  and  she 
never  sails  upon  it,  I  should  be  entitled  to  recover  back 
the   money  as  paid   upon  a  consideration  which  had 
failed  :  for  the  consideration  for  my  paying  the  premium 
was  the  risk  the  underwriter  was  to  take  upon  himself; 
but  as  the  risk  was  to  be  contemporaneous  with  the 
voyage,  and  as  that  never  commenced,  so  neither  did 
the  risk,  and,  consequently,  nothing  was  ever  given  in 
exchange  for  the  money.     So,  in  the  ordinary  case  of 
an  action  for  a  deposit.     If  A.  sells  an  estate  to  B.,  B. 
paying  a  part  of  the  purchase-money  as  a  deposit,  if  A. 
afterwards  prove  unable  to  make  out  a  title,  B.  may 
recover  back  the  money  deposited  for  the  consideration ; 
for  the  sale  has  become  abortive.     Such  are  the  common 
cases,  and  the  common  rule :  where  money  has  been 
paid  upon  a  consideration  which  totally  fails,  an  action 
will  lie  to  recover  it  back  again.     But  it  is  otherwise 
where  the  contract  was  an  illegal  one.     Where  money 
is  paid  in  pursuance  of  an  illegal  contract,  the  considera- 

to  complain  of  his  own  act ;  and  a  holder  placing  confidence   in   such  paper, 
ought  not  to  be  compelled  to  prove  consideration. — K. 

318 


LECT.  VII.]  ILLEGAL   CONTRACTS.  299 

tion  of  course  fails,  for  it  is  impossible  for  tlie  party 
who  has  paid  the  money  to  enforce  the  performance  of 
the  illegal  contract.  Still,  no  action  will  lie  to  recover 
it  back  again.  The  reason  of  this  is,  that  the  law  will 
not  assist  a  party  to  an  illegal  contract.  He  has  lost 
his  money,  it  is  true,  but  he  has  lost  it  by  his  own  folly 
in  entering  into  a  transaction  which  the  law  forbids. 
You  will  see  '''instances  of  this  in  the  cases  cited  ponri-i 
below  (n),  the  last  but  one  of  which,  Lubbock 
V.  Potts,  is  the  very  case  I  put,  that  of  an  insurance,  in 
which,  if  the  risk  be  not  run,  the  premium  may  be  re- 
covered back  again ;  but  in  that  case  the  insurance  was 
an  illegal  one,  and  it  was  therefore  held  that,  though  it 
could  not  have  been  enforced,  the  insured  should  not 
recover  back  the  premium.  The  point  is  forcibly  put 
by  L.  C.  J.  Wilrnot,  in  his  celebrated  judgment  in  Col- 
lins V.  Blantern,  which  I  have  several  times  cited  from 
2  Wilson,  341.  "Whoever,"  says  his  Lordship,  "is  a 
party  to  an  unlawful  contract,  if  he  have  once  paid  the 
money  contracted  to  be  paid  in  pursuance  thereof,  he 
shall  not  have  the  help  of  a  Court  to  fetch  it  back 
again.  You  shall  not  have  a  right  of  action  when  you 
come  into  a  Court  of  Justice  in  this  unclean  manner  to 
recover  it  back."^ 

To  this  rule,  however,  there  are  two  exceptions :  The 
first  is,  where  the  illegality  is  created  by  some  statute,  the 
object  of  which  is  to  protect  one  class  of  men  against 
another,  or  where  the  illegal  contract  has  been  extorted 

(w)  M'Kinnell  v.  Robinson,  3  M.  &  W.  441 ;  Howson  v.  Hancock,  8  T.  R. 
575;  Browning  v.  Morris,  Cowp.  790;  Lubbock  v.  Potts,  7  East,  449;  Begbie 
V.  Phosphate  Sewage  Co.,  L.  R.  10  Q.  B.  491, 1  Q.  B.  D.  (C.  A,),  679 ;  44  L.  J. 
(Q.  B.)  233. 

.  ^  The  familiar  maxim  applies,  "  In  pari  delicto,  poHor  est  conditio  defendentis  ,•" 
and  instances  of  its  application  may  be  found  in  Worcester  v.  E»ton,  11  Mass. 
368 ;  Merwin  v.  Huntington,  2  Conn.  209  ;  Perkins  v.  Savage,  15  Wend.  412, 
and  in  aiany  other  cases :  White  v.  Hunter,  23  N.  H.  128. — ^K. 

319 


800  ILLEGAL   CONTRACTS.  [leCT.  VII. 

from  one  party  by  the  oppression  of  the  other.  In 
cases  of  this  sort,  aUhough  tlie  contract  is  illegal,  and 

although  a  person  belonging  *to  the  class  against 
•-  -'  whom  it  is  intended  to  protect  others  cannot  re- 
cover money  he  has  paid  in  pursuance  of  it,  yet  a  per- 
son belonging  to  the  class  to  be  j)rotected  may,  since  the 
allowing  him  to  do  so  renders  the  Act  more  efficacious. 
You  will  see  this  proposition  illustrated  by  the  case  of 
Smith  V.  Bromley  (o),  which  turned  on  the  applica- 
tion of  one  of  the  old  Bankrupt  Acts.  That  Act,  to 
prevent  practices  on  bankrupts  who  had  not  obtained 
their  certificates,  and  who  for  the  sake  of  obtaining 
them  were  likely  to  be  willing  to  submit  to  any  terms, 
however  hard,  that  might  be  imposed  upon  them,  va- 
cated all  securities  given  by  the  bankrupt  or  any  one  on 
his  behalf,  in  consideration  of  the  signature  of  the  cer- 
tificate. A  creditor  refused  to  sign  the  certificate  unless 
a  sum  of  money  was  paid  him  by  a  friend  of  the  bank- 
rupt's, and,  the  money  having  been  paid,  it  was  held 
that  the  person  who  paid  it  might  recover  it  back  again. 
In  like  manner  one  of  the  old  Lottery  Acts  forbade, 
under  a  penalty,  the  ensuring  of  lottery  tickets.  The 
plaintiff  had  paid  a  sum  of  money  to  the  lottery  office 
keeper  as  premiums  for  the  purpose  thus  forbidden,  and 
was  held  entitled  to  recover  it  back  as  money  received 
to  his  use  {p).  The  Acts  against  usury  (now  repealed) 
made  the  taking  money,  reward,  or  promise  of  reward, 
by  the  informer  or  plaintiff  suing  for  the  penalties  of 

usury,  *in  order  to  compound  with  any  person 
•-  -^  offending  against  those  laws,  very  highly  penal: 
the  object  being  to  prevent  the  person  so  offending  from 
being  harassed  by  vexatious  actions  and  informations. 
It  was  therefore  held,  that,  where  the  defendant  had  in 

(o)  2  Dougl.  696,  note. 

(p)  Jacques  V.  Golightly,  2  Bl.  1073;  Jacques  v.  Withy,  1  H.  Bl.  65. 
320 


LECT.  VII.]  ILLEGAL    CONTRACTS.  302 

a  former  action  sued  the  plaintiff  for  the  penalties  of 
usury  in  a  transaction  with  another  person,  and  the 
plaintiff  had,  in  order  to  get  rid  of  that  penal  action, 
compounded  with  the  defendant,  by  paying  him  a  large 
sura  of  money,  he  might  recover  it  back  from  the  de- 
fendant, the  prohibition  against  compounding  such  ac- 
tions being  made  for  the  protection  of  the  party  sued  in 
them.  The  Court  considered,  that,  although  the  plain- 
tiff was  guilty  of  usury  and  liable  to  the  penalties  for 
usury,  he  was  not  liable  to  be  harassed  by  actions  com- 
menced for  the  purpose  of  being  compounded.  His 
criminality  was  collateral  to  the  offence  of  compounding ; 
his  consciousness  of  his  usurious  dealings  and  dread  of 
the  consequences  laid  him  at  the  mercy  of  the  defend- 
ant, and  enabled  the  latter  to  effectuate  an  act  of  extor- 
tion by  procuring  the  payment  of  a  sum  of  money ; 
and  in  respect  of  the  criminal  offence  of  compound- 
ing, the  plaintiff  was  tlie  person  whose  situation  was 
taken  advantage  of  against  the  object  of  tlie  statute, 
which,  for  his  protection,  made  such  compounding 
illegal  (q). 

*Very  similar  to  the  case  of  Smith  v.  Brom-  r^oAo-i 
ley,  above  cited,  is  that  of  Smith  v.  Cuffe  (r), 
where  the  defendant,  who  was  a  creditor  of  the  plaintiff, 
entered  into  an  agreement  with  the  plaintiff  and  the 
other  creditors,  to  accept  a  composition  of  10s.  in  the 
pound  on  the  debts  due  to  them  from  the  plaintiff.  The 
defendant  would  not  enter  into  this  agreement  except 
upon  the  consideration  that  the  plaintiff  should  give 
him  his  promissory  note  for  the  remainder  of  his  debt. 
The  note  was  given,  the  10s.  in  the  pound  paid,  the  de- 
fendant passed  away  the  note,  and  the  owner  compelled 

iq)  Williams  v.  Hedley,  8  East,  378, 

(r)  6  M.&  Selw.  160;  Atkinson  v.  Denby,  31   L.  J.  (Ex.)  362;  7  H.  &  N. 
934,  Ex.  Ch. 

21  321 


303  ILLEGAL  CONTRACTS.        [lECT.  VII. 

the  plaintiff  to  2^3,y  it.  The  Court  decided  that  the 
plaintiff  might  recover  back  from  the  defendant  the 
amount  of  the  note  so  paid.  In  this  case  it  was  strongly 
argued,  that,  both  parties  having  been  guilty  of  a  fraud 
upon  the  creditors,  the  case  was  within  the  rule  in  jyari 
delicto  potior  est  conditio  defendentis ;  but  Lord  Ellen- 
borough  said,  "this  is  not  a  case  oi par  delictum,  but  of 
oppression  on  one  side,  and  submission  on  the  other ;  it 
can  never  be  predicated  di^  par  delictum,  when  one  holds 
the  rod,  and  the  other  bows  to  it;  there  was  an  in- 
equality of  situation  between  these  parties — one  was 
creditor,  the  other  debtor,  who  was  driven  to  comply 
with  the  terms  which  the  former  chose  to  enforce.  And 
is  there  any  case,  where,  money  having  been  obtained 
extorsively  and  by  oppression,  and  in  fraud  of  the 
r*^041  *P^^^y's  ^^^  ^^^  '^^  i^  regards  the  other  creditors, 
it  has  been  held  that  it  may  not  be  recovered 
back  ?  On  the  contrary,  I  believe  it  has  been  uniformly 
decided,  that  an  action  lies." 

This  case  has  been  approved  and  acted  on  in  the 
more  recent  case  of  Horton  v.  Kiley  {s),  where  the  de- 
fendant, being  a  creditor  of  the  plaintiff,  entered  into  a 
similar  agreement  to  that  in  Smith  v.  Cuffe,  with  the 
plaintiff  and  the  other  creditors;  but  at  the  same  time 
agreed  privately  with  the  plaintiff  himself,  that  the  ex- 
cess of  his  debt  beyond  the  composition  should  be  secured 
to  him  by  the  joint  promissory  note  of  the  plaintiff  and 
two  sureties,  which  note  the  defendant  agreed  to  keep 
in  his  own  hands.  The  note  was  given,  but  the  de- 
fendant negotiated  it,  and  the  holder  enforced  payment 
from  the  plaintiff.  Under  these  circumstances,  the 
plaintiff,  if  sued  by  the  defendant  upon  the  note,  would 
have  had  a  good  defence  against  liim.  Of  this  defence 
he  was  deprived  by  the  defendant's  having  handed  the 

(«)  11  M.  &  W.  492.    See  Fraser  v.  Pendlebury,  31  L.  J.  (C.  P.)  1. 

322 


LECT.  Vll.J  ILLEGAL   CONTRACTS.  304 

note  over,  whereby  the  plaintiff  was  compelled  to  pay 
the  money,  and  he  had  therefore  a  right  to  recover  it 
back  from  the  defendant.  "The  agreement  in  this 
case,"  said  Lord  Abinger,  "makes  it  a  stronger  case 
even  than  Smith  v.  Cuffe,  and  I  see  no  reason  why  we 
should  depart  from  that  decision." 

*The  other  exception  is,  that,  when  money  has  r^on^-i 
been  paid  in,  or  goods  delivered,  under  an  uri-  -^ 

lawful  agreement,  but  there  has  been  no  further  perform- 
ance of  it,  the  party  paying  the  money  or  delivering  the 
goods  may  repudiate  the  transaction  and  recover  back  his 
money  or  goods  {t).  It  is  obvious  that  in  this  case  to 
allow  the  money  or  goods  to  be  recovered  is  to  allow  a 
locus  posnitentice  within  which  the  illegal  contract  may 
be  repented  of  and  not  completed  at  all. 

The  true  test  whether  a  demand  connected  with 
an  illegal  transaction  is  capable  of  being  enforced 
*at  law  is  whether  the  plaintiff  requires  any  aid  pi:or)p-i 
from  the  illegal  transaction  to  establish  his  case.  -' 

If  he  cannot  make  out  his  claim  except  through  an 
illegal  transaction,  e.g.,  if  he  is  suing  for  money  paid, 
and  cannot  present  his  case  without  necessarily  disclos- 
es Taylor  v.  Bowers,  1  Q.  B.  D.  291 ;  45  L.  J.  (Q.  B.,  etc.)  163 ;  46  lb.  39. 
See  also  Wilson  v.  Strugnell,  7  Q.  B.  D.  548  ;  50  L.  J.  (M.  C.)  145.  There,  a 
sum  of  money  was  paid  to  the  defendant,  who  became  bail  for  one  M.  on  a 
charge  of  embezzlement,  to  indemnify  him  against  his  liability  as  bail.  Tliis 
is  an  illegal  contract  as  contrary  to  public  policy.  But  before  the  recognize 
ance  had  been  forfeited,  it  was  held  that  M.'s  trustee  (M.  having  in  the  meaq-. 
time  become  bankrupt)  could  recover  the  sum  paid  from  the  defendant.  lo 
^former  editions  the  exception  was  stated  as  follows :— "  When  money  has  been 
paid  in  pursuance  of  an  illegal  contract,  but  paid  not  to  the  other  contracting  party 
but  to  a  stakeholder,  then  either  party  may  recover  it  back  again."  This  seems  un- 
necessarily narrow ;  see  Taylor  v.  Bowers  above  cited  and  the  authorities  there 
referred  to  in  the  judgment  of  Cockburn,  C.  J.  We  have  already  seen  (ante, 
p.  *270)  that,  in  the  case  of  a  stakeholder,  where  the  contract  is  void  as  being  a 
wager,  the  depositor  of  a  stake  may  at  any  time,  whether  before  or  after 
the  determination  of  the  event  on  wliioh  the  wager  depends,  provided  the 
money  be  not  paid  over,  demand  hacJc  and  recover  his  stake  from  the 
stakeholder. 

32a 


806  ILLEGAL  CONTRACTS.       [lECT.  VII. 

ing  the  unlawful  purpose  in  furtherance  of  which  the 
money  was  paid,  he  cannot  recover  (u). 

I  have  now  done  with  the  contract  itself.  I  have 
stated  the  various  points  relating  to  the  contract  itself, 
the  consideration,  and  the  effect  of  illegality  on  either. 
In  the  next  Lecture  I  shall  speak  of  the  parties  to  it. 

(«)  Simpson  v.  Bloss,  7  Taunt.  (2  E.  C.  L.  E.)  246;  Fivaz  v.  Nicholls,  2  0.  B. 
(52  E.  C.  L.  R.)  501 ;  Begbie  v.  Phosphate  Sewage  Co.,  L.  R.  10  Q  B.  491,  1 
Q.  B.  D.  (C.  A.j  679;  44  L.  J.  (Q.  B.)  233 ;  Taylor  v.  Bowers,  supra. 


2124 


*LECTUKE  VIII.  [*307] 

PARTIES   TO    CONTRACTS. INFANTS. MARRIED    WOMEN. 

The  next  branch  of  the  subject  relates  to  the  parties 
to  the  contract.  Now,  this  you  will  at  once  perceive,  in- 
volves a  double  consideration. 

Fird,  regarding  the  ability  of  the  parties  to  the  con- 
tract to  contract  at  all. 

Secondly,  regarding  their  ability  to  enter  into  this  or 
that  particular  sort  of  contract ;  for  (as  I  shall  have  to 
explain  more  at  length  to  you)  there  are  persons  who 
are  allowed  by  the  law  to  contract,  but  are  not  allowed 
to  contract  in  the  same  way  as  an  ordinary  individual ; 
for  instance,  a  corporation  may  contract  by  deed,  but 
cannot,  except  in  certain  cases  which  I  shall  presently 
specify,  contract  in  any  other  manner.^  However,  al- 
though these  two  considerations  are  in  themselves  dis- 
tinct, yet  I  think  the  better  and  more  intelligible  plan 
will  be  to  deal  with  both  of  them  together,  specifying 
one  by  one,  those  classes  of  persons  regarding  whose 
power  to  contract  the  law  contains  any  particular  provi- 
sions, and  pointing  out,  while  treating  upon  each  of 
them,  in  what  cases  they  are  disabled  from  entering 
into  any  contract,  and  in  what  cases,  although  allowed 
■■'■•to  contract,  they  are  obliged  to  do  so  in  a  par-  p^qrvon 
ticular  form.  ^         -' 

Now,  I  need  hardly  tell  you  that,  prima  facie  any 
subject  of  the  realm  has  power  to  enter  into  any  con- 
tract not  rendered  illegal  by  the  provisions  of  the  stat- 
ute or  common  law ;  and,  therefore,  the  cases  to  which 
I  am  now  to  advert  are  cases  of  complete  or  partial  dis- 
ability, cases  in  which  a  contract,  which  would  have 

*  Vide  infra,  pp.  *370  et  seq.  and  notes. 

325 


308  PAKTIES   TO    CONTRACTS.  [lECT.  VIII. 

been  good  if  entered  into  by  an  ordinary  individual,  is, 
when  entered  into  by  some  particular  individual,  invalid, 
because  that  individual  happens  to  fall  within  a  class  of 
persons  who  either  do  not  possess  ability  to  contract  at  all, 
or  do  not  possess  ability  to  contract  in  that  particular  way. 

The  first  of  these  classes  of  persons  to  which  I  shall 
advert,  is  that  of  Infants. 

The  general  principle  which  regulates  this  branch  of 
the  law  is,  that  until  an  individual  has  attained  the  age 
of  twenty-one,  which  period  the  law  has  selected  as  that 
at  which  a  person  of  average  capacity  may  fairly  be 
supposed  to  have  attained  sufficient  experience  to  render 
his  natural  faculties  fully  available  in  the  practical  busi- 
ness of  the  world,  it  is  necessary  to  shield  him  from  the 
dangers  of  becoming  a  prey  to  others  willing  to  take  an 
advantage  of  his  inexperience;  and  as  there  are  no 
means  of  doing  this  except  by  placing  him  under  a 
limited  disability  to  contract,  he  is  accordingly  placed 
under  such  limited  disability.  But  ^inasmuch 
'-  *  -I  as  to  place  him  under  a  total  disability  might 
have  the  effect  of  preventing  him  from  attaining  objects 
not  only  not  detrimental,  but  of  the  utmost  advantage 
to  him,  he  is,  in  order  to  avoid  this  risk,  permitted  to 
bind  himself  to  a  certain  extent,  since  otherwise  he 
might  be  unable  to  obtain  food,  clothes,  or  education, 
though  certain  to  possess  at  no  very  distant  period  the 
means  of  amply  paying  for  them  all. 

The  general  principle  therefore  is,  that  an  infant  may 
bind  himself  by  a  contract  for  what  the  law  considers 
necessaries,  but  not  by  any  other  contract.  We  will 
consider,  therefore,  what  it  is  that  the  law  comprises 
under  this  denomination. 

Now,  it  is  well  established  by  the  decisions,  that  under 
the  denomination  necessaries   fall  not   only  the   food, 
clothes,  and  lodging  necessary  to  the  actual  support  of 
326 


LECT.  VIII.]  INFANTS.  309 

life,  but  likewise  means  of  education  suitable  to  the  in- 
fant's degree,  and  all  those  accommodations,  convenien- 
ces, and  even  matters  of  taste,  which  the  usages  of  so- 
ciety for  the  time  being  render  proper  and  conformable 
to  a  person  in  the  rank  in  which  the  infant  moves.  The 
question  what  is  conformable — what  is,  in  the  legal  sense 
of  the  word,  necessary — is,  in  each  case,  to  be  decided 
by  a  jury;  but  these  are  the  principles  by  which  the 
judge  ought  to  direct  the  jury  that  their  decision  should 
in  each  particular  case  be  guided.  Though  however 
the  question  of  '*  necessaries  "  or  "  not  necessaries  "  is 
one  of  fact  and  therefore  for  the  *jury  ;  yet  like 
all  other  questions  of  fact,  it  should  not  be  left  ^  ^ 
to  the  jury  by  the  judge  unless  there  is  evidence  on 
which  they  can  reasonably  find  in  the  affirmative.  If 
there  is  not,  the  judge  ought  to  withdraw  the  question 
from  the  jury  (a)}  It  is  impossible,  however,  to  under- 
stand this  subject  practically,  so  as  to  be  able  to  say  with 
tolerable  certainty  what  would  be  the  decision  on  this 
or  that  particular  case,  except  by  a  familiarity  with 
similar  ones.  I  will  therefore  refer  you  to  a  number  of 
decided  cases,  containing,  in  my  judgment,  the  best  illus- 
trations of  the  matter, 

(a)  Kyder  v.  Wombwell,  L.  K.,  4  Ex.  32;  38  L.  J.  (Ex.)  8  (Ex.Ch.)  revers- 
ing S  a,  3  L.  E.,  Ex.  90;  37  L.  J.  (Ex.)  48. 

'  In  a  very  learned  modern  work  on  contracts  the  law  on  this  point  is  thus 
clearly  summarized:  "  When  it  is  sought  to  enforce  a  contract  against  an  in- 
fant on  the  ground  that  it  was  for  necessaries,  then  the  primd  facie  necessity  of 
the  commodities  supplied  is  a  question  for  the  court.  If  the  court  holds  then 
not  prima  facie  necessary,  evidence  may  be  given  of  special  circumstances  ren- 
dering them  in  fact  necessary,  and  the  sufficiency  or  otherwise  of  such  evi- 
dence is  a  question  for  the  court.  Subject  as  above,  the  necessity  of  the  com- 
modities in  fact  is  a  questson  for  the  jury.  Commodities  of  a  description  in 
itself  necessary  are  [probably]  not  necessaries  when  the  buyer  is  already  sup- 
plied with  as  much  of  the  like  commodities  as  he  can  reasonably  want."  Pol- 
lock on  Contracts,  52.  In  view  of  the  subsequent  case  of  Barnes  v.  Toye,  13  Q. 
B.  D.  410  (ivfra  p.  *315  and  note),  the  qualifying  word  inserted  in  the  last  sen- 
tence may  be  omitted,  at  least  so  far  as  the  English  law  is  concerned. 

327 


310  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

The  two  cases  of  Peters  v.  Fleming  (b),  and  Harrison 
V.  Fane  (c),  in  one  of  which  the  infant  was  held  liable, 
and  in  the  other  not,  ajjpear  to  me  to  furnish  good  ex- 
amples of  the  distinctions  of  which  I  am  speaking. 

In  Peters  v.  Fleming,  the  plaintiff,  who  was  a  jewel- 
ler, brought  an  action  of  debt  against  an  infant  who 
pleaded  his  infancy  by  w^ay  of  defence ;  the  plaintiff  re- 
plied that  the  goods,  for  the  price  of  which  he  sued, 
were  necessaries  suitable  to  the  estate,  degree,  and  con- 
dition in  life  of  the  infant ;  on  which  issue  was  joined, 
and  the  question  to  be  tried  was,  whether  they  were  or 
were  not  so.    It  turned  out  that  the  infant  was  the  eldest 
son  of  a  member  of  Parliament,  who  was,  also,  a  gentle- 
man *of  fortune,  and  that  the  infant  was  an 
L         -^    undergraduate  of  the  University  of  Cambridge, 
and  resided  at  the  University.     The  articles  supplied 
were  four  rings,  a  gold  watch-chain,  and  a  pair  of 
breast-pins.     The  jury  found  that  these  articles  were 
necessaries,  and  a  motion  vras  made  to  set  aside  the  ver- 
dict as  contrary  to  evidence.     The  Court  of  Exchequer, 
however,  refused  to  interfere.     Baron  Parke  said, — "  It 
is  perfectly  clear,  that,  from  the  earliest  time  down  to 
the  present,  the  word  necessaries  was  not  confined  to 
such  articles  as  were  necessary  to  the  support  of  life, 
but  extended  to  articles  fit  to  maintain  the  particular 
person  in  the  state,  station,  and  degree  of  life  in  which 
he  is ;  and  therefore,  we  must  not  take  the  word  'neces- 
saries '  in  its  unqualified  sense,  but  with  the  qualification 
above  pointed  out.     The  question,  therefore,  is,  whether 
there  was  any  evidence  to  go  to  the  jury  that  any  of 
these  articles  were  of  that  description.     I  think  there 
are  two  that  might  fall  under  that  description,  namely 
the  breast-pin  and  the  watch-chain.     The  former  might 

(6)  6  M.  &  W.  42. 

(c)  1  M.  &  Gr.  (39  E.  C.  L.  E.)  650. 

328 


LECT.  yill.]  INFANTS.  311 

be  a  matter  either  of  necessity  or  of  ornament.  Tlie 
usefulness  of  the  other  miglit  depend  on  this,  whether 
the  watch  was  necessary  ?  If  it  was,  then  the  cliain 
might  become  necessary  itself.  Now,  it  is  impossible 
that  a  judge  could  withdraw  from  the  consideration  of 
a  jury  whether  a  watch  was  necessary  for  a  young  man 
at  college,  and  of  the  age  of  eighteen  or  nineteen,  to  have. 
That  being  so,  it  is  equally,  as  far  as  the  *chain 
is  concerned,  a  question  for  the  jury.  There  ■-  "-^ 
was  therefore  evidence  to  go  to  the  jury.  The  true  rule 
I  take  to  be  this,  that  all  such  articles  as  are  purely 
ornamental  are  not  necessary,  and  are  to  be  rejected,  be- 
cause they  cannot  be  requisite  for  any  one,  and  for  such 
matters  therefore  an  infant  cannot  be  made  responsible. 
But  if  they  were  not  strictly  of  this  description,  then 
the  question  arises  whether  they  were  bought  for  the 
necessary  use  of  the  party,  in  order  to  support  himself 
properly  in  the  degree,  state,  and  station  of  life  in  which 
he  moved.  If  they  were,  for  such  articles  the  infant 
may  be  made  responsible." 

On  the  other  hand,  in  Harrison  v.  Fane  (d),  an 
action  was  brought  by  a  livery  stable-keeper  for  the 
hire  of  horses ;  the  defendant  pleaded  infancy,  and  the 
plaintiff  replied  that  the  horses  furnished  were  neces- 
sary for  the  infant,  upon  which  issue  was  joined.  It 
turned  out,  on  the  trial,  that  the  defendant  was  the 
younger  son  of  a  gentleman  who  had  once  been  a 
member  of  Parliament,  and  who  had  a  family  of  five 
children.  The  defendant,  the  infant,  kept  a  horse  of 
his  own,  and  sometimes  hunted  with  his  father's  hounds. 
Under  these  circumstances   the   judge  who   tried  the 


(d)  1  M.  &  Gr.  (39  E.  C.  L.  K.)  550.  See,  however,  the  decision  of  the 
Cburt  of  Exch.  Ch.  in  Ryder  i'.  Wombwell,  cited  ante  p.  *310,  as  to  the  duty 
of  the  judge  to  withdraw  the  question  from  the  jury  in  the  absence  of  evi- 
dence on  which  they  could  reasonably  find  that  the  articles  i^eie  necessaries. 

329 


312  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

r*Qio-|  cause  thought  that  the  horses  *were  not  neces- 
saries, and  directed  the  jury  accordingly;  but 
the  jury  thought  proper,  nevertheless,  to  find  their 
verdict  for  the  plaintiff.  The  Court  considering  it  a 
perverse  one,  and  contrary  to  law,  set  it  aside,  the  L.  C. 
J.  observing  that  he  would  not  say  that  horses  could 
not  be  necessaries  under  any  circumstances,  but  that  no 
evidence  was  given  that  they  were  so  in  the  present 
case.^     With  regard  to  the  L.  C.  Justice's  remark,  I 


^  The  result  of  the  cases  on  both  sides  of  the  Atlantic  seems  to  be,  that 
unless  the  articles  are,  both  as  to  quality  and  quantity,  such  as  must  be  neces- 
saries to  any  one,  the  burden  of  i^roof  lies  on  the  plaintiff  to  show  such  a 
condition  of  life  of  the  defendant  as  might  raise  to  the  rank  of  necessaries, 
things  which  would  otherwise  be  luxuries  :  Brooker  v.  Scott ;  "Wharton  v. 
M'lvenzie;  Rainwater  v.  Durham,  2  N.  &  Mc.  524;  Rundle  v.  Keeler,  7 
Watts,  239;  Phelps  v.  Worcester,  11  N.  H.  51  ;  Bent  v.  Manning,  10  Vt. 
225 ;  Grace  v.  Hale,  2  Humph.  27.  When  this  has  been  shown,  tlie  question 
whether  the  articles  are  necessaries,  is  one  for  the  juiy,  subject,  however,  in 
some  cases,  to  the  direction  of  the  Court,  as,  for  instance,  as  was  said  in 
Wharton  v.  M'Kenzie,  supra,  "  Suppose  the  son  of  the  richest  man  in  the 
kingdom  to  have  been  supplied  with  diamonds  and  race-horses,  the 
Judge  ought  to  tell  the  jury  that  such  articles  cannot  possibly  be  neces- 
saries." And  it  would  also  seem  that  the  articles  must  be  to  supply 
•personal  wants  either  for  the  body  or  mind  ;  expenditures,  therefore,  for  other 
purposes,  as,  for  example,  for  alterations  in  an  infant's  real  estate,  however 
requisite,  can  never  be  considered  as  necessaries,  they  being  regarded  in  the 
same  light  as  articles  furnished  him  for  trade,  the  price  of  which  cannot,  as 
will  be  presently  seen,  be  recovered  as  necessaries,  however  beneficial  they 
may  be  to  the  business :  Tupper  v.  Cadwell,  13  Mete.  559.  And  even  in  cases 
where  there  can  be  no  doubt  that  the  articles  are  proper  and  necessary  in 
themselves,  yet  as  an  overplus  of  goods,  otherwise  proper,  ceases  to  be  a  sup- 
ply of  necessaries  as  to  the  excess,  the  jury  should  be  directed  to  find  for  no 
more  than  is  absolutely  necessary,  unless  there  is  evidence  to  justify  the 
quantity :  Johnson  v.  Lines,  6  W.  &  S.  84. — K. 

The  board  of  an  infant  is  included  among  the  necessaries,  for  which  he 
may  pledge  his  credit :  Bradley  v.  Pratt,  23  Vt.  378.  Circumstances  may  exist 
which  would  render  a  home  suitable  to  an  infant's  fortune  and  station  in 
life :  Aaron  v.  Harley,  6  Rich.  26.  An  infant  who  has  an  allowance  from  the 
Court  or  any  other  source,  of  a  sum  sufficient  to  supply  himself  with  neces- 
saries, suitable  to  his  fortune  and  condition  is  not  liable  ordinarily  for 
necessaries  supplied  on  credit :  Rivers  r.  Gregg,  5  Rich.  Eq.  274.  Where 
it  appears  that  a  minor  has  been  furnished  with  money  enough  to  oiocure  all 
necessaries,  the  law  presumes  that  he  has  been  fully  supplied,  and  the  plain- 

330 


LECT.  VIII.]  INFANTS.  313 

feel  no  difficulty  in  putting  a  case  in  'vviiicb  a  horse 
might  be  considered  necessary.  Suppose,  for  instance, 
the  infant  were  a  young  man  in  a  genteel  station  of 
life,  and  had  been  ordered  horse  exercise  by  a  medical 
attendant. 

Thus,  in  a  case  subsequently  decided  (e),  soda  water, 
oranges,  and  jellies,  for  an  infant  undergraduate  at  col- 
lege, were  held,  prima  facie,  not  to  be  necessaries, 
though  they  might  have  been  shown  to  have  been  so. 

"  This,"  said  Mr.  Baron  Parke,  "  is  the  case  of  a 
young  man  resident  in  the  town,  and  having  from  his 
college  everything  necessary  for  a  person  in  statu  pu- 
pillari."  Had  there  been  evidence  that  his  medical 
attendant  recommended  them,  they  would  undoubtedly 

(e)  Brooker  v.  Scott,  11  M.  &  W.  67. 


tiff  must  negative  that  presumption.  And  if  it  appears  that  he  has  been 
furnished  at  other  places,  at  or  about  the  same  time,  those  who  supplied  him 
first  have  a  prior  right  to  be  paid :  Nicholson  v.  ^Vilborn,  13  Ga.  467. 
Whether  certain  articles  furnished  a  minor  were  necessaries  or  not  is  gen- 
erally a  question  of  fact  for  the  jury,  depending  on  all  the  circumstances  of 
the  case  ;  the  two  principal  circumstances  being  whether  the  articles  were 
suitable  to  the  minor's  estate  and  condition,  and  whether  he  is  without  other 
means  of  supply  :  Davis  v.  Caldwell,  12  Cush.  512.  If  an  infant  is  under  the 
care  of  a  parent  or  guardian,  who  has  the  means  and  is  willing  to  furnish 
him  what  is  actually  necessary,  he  can  make  no  contract  for  any  article  that 
will  bind  him  :  Elrod  v.  Myers,  2  Head,  33.  A  contract  for  the  insurance  of 
his  property  against  loss  or  damage  by  fire  is  not  a  contract  for  necessaries  : 
New  Hampshire  Ins.  Co.  v.  Noyes,  32  N.  H.  345.  Nor  is  a  contract  to  repair 
his  estate:  West  v.  Gregg,  1  Grant,  53;  Tupper  v.  Cadwell,  12  Met.  562.  As 
to- what  are  necessaries  see  Merriam  t'.  Cunningham,  11  Cush.  40;  Sams  v, 
Stockton,  14  B.  Mon.  232  ;  Freeman  v.  Bridger,  4  Jones,  1  ;  Wilhelm  v.  Hard- 
man,  13  Md.  140.  An  infant  may  bind  himself  to  pay  for  necessaries  he 
obtains  so  much  as  they  are  reasonably  worth,  but  not  what  he  may  foolishly 
have  agreed  to  pay  for  them :  Locke  v.  Smith,  41  N.  H.  346  ;  Squier  v.  Hyd- 
liff,  9  Mich.  274.  A  minor  is  liable  for  money  paid  at  his  request  by  the 
plaintiff  to  a  third  person  for  necessaries  furnished  him :  Swift  v.  Bennett,  10 
Cush.  436.  Payment  to  a  minor  under  a  contract  for  services  made  directly 
with  him,  but  with  the  knowledge  of  the  parent  is  a  good  defence  to  an 
action  brought  by  the  parent  to  recover  for  such  services :  Nixon  v.  Spencer, 
16  Iowa,  214.  See  also  Munson  v.  Washband,  31  Conn.  303  ;  Eobinson  v. 
Weeks,  56  Me.  102.— s. 

331 


313  PAKTIES   TO   CONTRACTS.  [lECT.  VIII. 

have  been  considered  necessaries  (/).  The  case  of 
Hands  v.  Slaney  (g),  also  well  illustrates  both 
r*S1 4T    '^^ti^se  2:)roi)Ositions,  for  in  that  case  it  was  held 

that  a  captain  in  the  army,  under  age,  was 
liable  for  a  livery,  ordered  by  him  for  his  servant,  but 
not  for  cockades  given  to  the  soldiers  of  his  company. 
Lord  Kenyan  thought  it  was  proper  for  a  gentleman  in 
the  defendant's  situation  to  have  a  servant,  and  if  j^ro- 
per  to  have  a  servant,  that  the  servant  should  have  a 
livery,  but  that  the  cockades  could  not  be  necessaries.  In 
one  of  the  most  recent  cases  on  the  subject,  Kyder  v. 
Wombwell  (A),  it  was  held  that  there  was  no  evidence 
of  either  a  pair  of  jewelled  solitaires  worth  £25,  or  an 
antique  goblet,  intended  for  a  present,  worth  £15  15s., 
being  necessaries  for  an  infant,  the  son  of  a  baronet, 
with  no  independent  establishment,  and  in  the  receipt 
of  an  allowance  of  £500  a  year ;  that  the  question, 
therefore,  of  "  necessaries  "  or  not  ought  not  to  be  left 
to  the  jury,  but  a  nonsuit  directed.  If  the  articles  sup- 
plied to  the  infant  are  in  their  own  nature  necessaries, 
considering  the  infant's  degree  and  station,  it  is  imma- 
terial that  he  had  such  an  allowance  paid  to  him  as 
might  have  enabled  him  to  pay  ready  money  for 
them  {i).  But  articles  which  are  prima  facie  of  the 
class  of  necessaries  may  be  taken  out  of  that  class  by 
evidence  that  the  infant  was  at  the  time  when  the  order 
p5j.o|f--]    was.  given   already  sufficiently  supplied   with 

'"goods  of  a  similar  description.  A  tradesman 
therefore,  who  wishes  to  be  safe,  should  before  supply- 
ing an  infant  with  goods,  make  inquiries  as  to  the  de- 
gree in  which  he  is  already  supplied  with  goods  of  thej 

(/)  Wharton  v.  Mackenzie,  5  Q.  B.  (48  E.  C.  L.  R.)  606. 
\g)  8  T.  K.  578 ;  Coates  v.  Wilson,  5  Esp.  152. 
(A)  In  Ex.  Ch.,  L.  E.  4  Ex.  32,  38  L.  J.  (Ex.)  8,  reversing  S.  a,L.  E.  3  Ex. 
90,  37  L.  J.  (Ex.)  48. 

(i)  Burghart  v.  Hall,  4  M.  &  W.  727.     [But  see  note  1,  p.  *313.] 

332 


LECT.  VIII.]  INFANTS.  315 

like  kind,  for  if  he  is,  the  tradesman   cannot  recover, 
whether  he  knew  or  not  of  the  existing  supply  (k)} 

It  has  always  been  considered  tliat  necessaries  for  an 
infant's  wife  and  children  are  necessaries  for  him- 
self {l)^  a  doctrine  wliich,  together  with  that  of  an  in- 
fant's liability  generally,  is  so  fully  and  clearly  ex- 
plained in  the  judgment  of  the  Court  of  Exchequer,  in 
the  case  of  Chappie  v.  Cooper  (m),  that  it  deserves 
to  be  carefully  studied.  "  It  seems  clear,"  said 
Mr.  Baron  Alderson,  delivering  the  judgment  of  the 
Court,  "  that  an  infant  can  contract  so  far  as  to  bind 
himself  in  those  cases  where  it  is  necessary  for  him  to 
have  the  things  for  which  he  contracts ;  or  where  the 

(k)  Barnes  v.  Toye,  13  Q.  B.  D.  410. 
(l)  Turner  v.  Trisby,  1  Str.  168. 
(m)  13  M.  &  W.  252. 

^  In  the  case  of  Barnes  v.  Toye,  supra,  the  Queen's  Bench  Division  dissented 
from  Kyder  v.  Wombwell,  L.  K.  3  Exch.  90,  4  lb.  35,  upon  this  point.  In  the 
latter  case  the  Court  of  Exchequer  were  of  the  opinion  that  even  if  the  infant 
were  supplied  already  with  articles  of  tlie  class  furnished,  and  which  were 
primd  facie  necessaries,  a  tradesman  who  was  ignorant  of  this  fact  could 
recover.  But  in  the  later  case  it  was  pointed  out  that  this  would  make  the 
protection  thrown  about  an  infant  by  the  law  dependent  upon  the  state  of 
knowledge  of  the  party  he  was  dealing  with,  and  the  Court  refused  to  follow 
it  (Manisty,  J.,  dubitanie). 

In  Nichol  v.  Steger,  2  Tenn.  Ch.  328,  Cooper,  Ch.,  said,  "Nothing  is  clearer 
than  that  an  infant  cannot  bind  himself  or  his  estate  even  for  necessaries,  if 
they  are  furnished  him  by  his  guardian.  .  .  .  Nor  can  it  make  any  differ- 
ence that  the  person  who  deals  with  the  infant  is  not  aware  of  the  fact  that 
he  was  an  infant  and  had  a  guardian.  It  is  his  duty  to  inquire.  .  .  .  And  the 
very  fact  that  the  infant  has  an  ample  estate  is  a  strong  reason  for  adhering  to 
the  general  rule."  See  the  authorities  cited  in  this  case.  In  Johnson  v. 
Lines,  6  W.  &  S.  80,  Gibson,  C.  J.,  held  that  an  over-supply  of  an  infant's 
wants,  though  the  articles  might  in  other  respects  be  ranked  as  necessaries,  gives 
a  demand  against  him  only  for  so  much  as  was  actually  needed ;  and  it  is  the 
tradesman's  duty  to  acquaint  himself  with  the  infant's  circumstances  and 
necessities,  as  well  as  to  take  notice  of  supplies  by  other  tradesmen. 

*  So,  indeed,  an  infant  marrying  an  adult  wife  became  liable  on  her  con- 
tracts whetlier  for  necessaries  or  otherwise ;  for  her  contracts  are  valid,  being 
made  by  an  adult,  and  the  husband's  liability  is  an  incident  of  the  marriage 
contract,  which  is  one  that  the  law  allows  the  infant  to  make :  Butler  v, 
Breck,  7  Mete.  164;  Roach  v.  Quick,  9  Wend.  238.— R. 

333 


315  PARTIES    TO    CONTRACTS.  [lECT.  VIll. 

contract  is,  at  the  time  he  makes  it,  plainly  and  une- 
quivocally for  his  benefit.  It  is  with  the  former  class 
that  we  are  concerned.  Things  necessary  are  those 
without  which  an  individual  cannot  reasonably  exist. 
In  the  first  j^lace,  food,  raiment,  lodging  and  the  like. 
About  these  there  is  no  doubt.  Again,  as  the  proper 
cultivation  of  the  mind  is  as  expedient  as  the  support 
of  the  body,  instruction  in  art  or  trade,  or  intellectual, 
r*Sin  i^o^'^lj  ^^id  religious  information  may  be  a 
'''necessary  also.  Again,  as  man  lives  in  society, 
the  assistance  and  attendance  of  others  may  be  a  neces- 
sary to  his  well-being.  Hence,  attendance  may  be  the 
subject  of  an  infant's  contract.  Then  the  classes  being 
established,  the  subject-matter  and  extent  of  the  con- 
tract may  vary  according  to  the  state  and  condition  of 
the  infant  himself.  His  clothes  may  be  fine  or  coarse 
according  to  his  rank ;  his  education  may  vary  accord- 
ing to  the  station  he  is  to  fill ;  and  the  medicines  will 
depend  on  the  illness  with  which  he  is  affiicted,  and 
the  extent  of  his  probable  means  when- of  age.  So, 
again,  the  nature  and  extent  of  the  attendance  will 
depend  on  his  position  in  society ;  and  a  servant  in 
livery  may  be  allowed  to  a  rich  infant,  because  such  at- 
tendance is  commonly  appropriated  to  persons  in  his 
rank  of  life.  But  in  all  these  cases  it  must  be  first 
made  out  that  the  class  itself  is  one  in  which  the  things 
furnished  are  essential  to  the  existence  and  reasonable 
advantage  and  comfort  of  the  infant  contractor.  Thus, 
articles  of  mere  luxury  are  always  excluded,  though 
luxurious  articles  of  utility  are  in  some  cases  allowed. 
So,  contracts  for  charitable  assistance  to  others,  though 
highly  to  be  praised,  cannot  be  allowed  to  be  binding, 
because  they  do  not  relate  to  his  own  personal  advan- 
tage. In  all  cases  there  must  be  personal  advantage 
from  the  contract  derived  to  the  infant  himself.  It  is 
334 


LECT.  Vlll.]  INFANTS.  316 

manifest,  we  think,  that  this  principle  alone  would  not 
be  sufficient  to  '^decide  the  present  case.  For  it  r:j:o-j/T-| 
would  be  difficult  to  say  that  there  is  any  per- 
sonal advantage  necessarily  derived  to  an  infant  from 
the  mere  burial  of  a  deceased  person.  But  there  is 
another  consideration  which  arises  out  of  the  circum- 
stances of  this  case,  which  may,  we  think,  materially 
affiact  the  defendant's  liability.  This  is  the  case  of  an 
infant  widow,  and  the  burial  that  of  her  husband,  who 
has  left  no  property  to  be  administered.  Now,  the  law 
permits  an  infant  to  make  a  valid  contract  of  marriage; 
and  all  necessaries  furnished  to  one  with  whom  he  be- 
comes one  person  by  or  through  the  contract  of  mar- 
riage are,  in  point  of  law,  necessaries  to  the  infant 
himself.  Thus  a  contract  for  necessaries  to  an  infant's 
wife  and  lawful  chikh'en  is  used  by  Lord  Bacon  as  one 
of  the  illustrations  of  the  maxim  ^Persona  conjuncta 
eequiparatur  inieresse  proprio^  (n).  '  If  a  man,'  says 
Lord  Bacon,  '  under  the  years  of  twenty-one  contract 
for  the  nursing  of  his  lawful  child,  this  contract  is  good, 
and  shall  not  be  avoided  by  infancy,  no  more  than  if  he 
had  contracted  for  his  own  aliment  or  erudition.'  Now 
there  are  many  authorities  which  lay  down  that  decent 
Christian  burial  is  a  part  of  a  man's  own  rights;  and 
we  think  it  is  no  great  extension  of  the  rule,  to  say  that 
it  may  be  classed  as  a  personal  advantage,  and  reason- 
ably necessary  to  him.  His  property,  if  he  leaves  any, 
is  liable  to  be  appropriated  by  his  administrator  to  the 
"^'performance  of  this  })roper  ceremonial.  If,  then,  p..o-|  o-i 
this  be  so,  the  decent  Christian  burial  of  his 
wife  and  lawful  children,  who  are  the  persons  conjunctcB 
with  him,  is  also  a  personal  advantage,  and  reasonably 
necessary  to  him ;  and  then  the  rule  of  law  implies  that 
he  may  make  a  binding  contract  for  it.     This  seems  to 

(rt)  Bac.  Law  Maxims,  r.  18 — Broom's  Alaximis,  533,  5th  edit. 

335 


S18  PAETIES    TO    CONTRACTS.  [lECT.  VIII. 

US  to  be  a  proper  and  legitimate  consequence,  from  the 
proposition  that  the  law  allows  an  infant  to  make  a  valid 
contract  of  mai'riage.  If  this  be  correct,  then  an  infant 
husband  or  parent  may  contract  for  the  burial  of  his 
wife  or  lawful  children ;  and  then  the  question  arises 
whether  an  infant  widow  is  in  a  similar  situation.  It 
may  be  said  that  she  is  not,  because  during  the  cover- 
ture she  is  incapable  of  contracting,  and,  after  the  death 
of  the  husband,  the  relation  of  marriage  has  ceased. 
But  we  think  this  is  not  so. 

"  In  the  case  of  the  husband  the  contract  will  be 
made  after  the  death  of  the  wife  or  child,  and  so  after 
the  relation  which  gives  validity  to  the  contract  is  at  an 
end  to  some  purposes.  But  if  the  husband  can  contract 
for  this,  it  is  because  a  contract  for  the  burial  of  those 
who  are  persoyice  conjunctce  with  him  by  reason  of  the 
marriage,  is  as  a  contract  for  his  own  personal  benefit ; 
and  if  that  be  so,  we  do  not  see  why  the  contract  for 
the  burial  of  the  husband  should  not  be  the  same  as  a 
contract  by  the  widow  for  her  own  personal  benefit. 
Her  coverture  is  at  an  end,  and  so  she  may  contract ; 
r*^1Q1  ^"^  1^®^  infancy  is,  for  the  above '"^reasons,  no 
defence,  if  the  contract  be  for  her  personal 
benefit. 

"  It  may  be  observed,  that  as  the  ground  of  our  deci- 
sion arises  out  of  the  infant's  previous  contract  of  mar- 
riage, it  will  not  follow  from  it  that  an  infant  child  or 
more  distant  relation  would  be  responsible  upon  a  con- 
tract for  the  burial  of  his  parent  or  relative." 

More  recently,  it  has  been  held,  in  strict  conformity 
with  this  reasoning,  that  as  the  contract  of  marriage  is 
one  which  it  is  competent  for  an  infant  to  enter  into,  a 
proper  marriage  settlement  upon  an  infant  lady,  even 
of  the  property  of  her  intended  husband,  might  justly 
be  considered  necessary  and  suitable  to  her  state  and 
336 


LECT.  VIII.]  INFANTS.  319 

condition;  and  that  consequently  the  preparation  of 
such  settlement  was  beneficial,  and  a  contract  for  pre- 
paring it  was  binding  upon  her  (o). 

There  are,  however,  some  species  of  contracts  which 
the  law  considers  it  so  imprudent  on  the  part  of  an 
infant  to  enter  into,  that  it  will  not  allow  him  to  bind 
himself  by  them  under  any  circumstances.  For  in- 
stance, an  infant  cannot  trade,  and  consequently  cannok 
bind  himself  by  any  contract  having  relation  to  trade. 
AVe  know,  by  constant  experience,  that  infants  do  in 
fact  trade,  and  trade  sometimes  very  extensively.  How- 
ever, there  exists  a  conclusive  presumption  of  law  that 
no  infant  under  the  age  of  twenty-one  has  discretion 
*enou2rli  for  that  purpose.  You  will  see  this  ^ 
laid  down  in  Why  wall  v.  Champion  (p),  Dilk  ^  -• 
?.'.  Keighley  (q).  He  may,  therefore,  recover  back  in 
an  action  for  money  had  and  received  a  sum  which, 
while  an  infant,  he  had  paid  towards  the  purchase  of  a 
share  in  tlie  defendant's  trade  (r),  not  having  actually 
received  any  profit  or  benefit  from  the  business  (s).  If 
he  has  obtained  such  profit,  or  has  derived  advantage 
from  the  business,  so  that  he  cannot  put  the  defendant 
in  the  same  situation  in  which  he  would  have  been  had 
the  contract  not  been  made,  he  cannot  recover  back  the 
money  {t).  Some  singular  consequences  follow  from 
this  general  rule ;  for  instance,  a  bill  of  exchange  is  a 
mercantile  contract,  deriving,  as  1  had  occasion  to  ex- 
plain in  the  last  Lecture,  its  peculiar  and  distinguishing 
qualities  from  the  law  merchant.     An  infant,  therefore, 

(o)  Helps  V.  Clayton,  34  L.  J.  (C.  P.)  1. 
(p)  Str.  1083. 
(g)  2  Esp.  480. 

(r)  Corpe  ■  Overton,  10  Bing.  (25  E.  C.  L.  E.)  252. 
(s)  Holmes  v.  Blogg,  8  Taunt.  (4  E.  C.  L.  R.)  508. 

(0  Corpe  V.  Overton,  supra;  Holmes  i\  Blogg,  supra;  Ex  parte  Taylor,  in  re 
Burrows,  25  L.  J.  (Bptcy.)  35. 

22  337 


320  PARTIES    TO   CONTRACTS.  [lECT.  VIII. 

as  he  cannot  \)Q  a  merchant,  is  not  allowed  to  bind  liira- 
self  by  becoming  a  party  to  such  an  instrument ;  and 
thus,  although  a  young  man  under  the  age  of  twenty- 
one  may  bind  himself  by  a  contract  to  pay  money  for 
his  necessary  dress,  living,  or  education,  yet,  if  he  accept 
a  bill  for  the  price  of  these  very  articles,  it  will  not  bind 
him,  although  by  accepting  the  bill,  he  in  fact  would 
r**^91  "I  ^^^^^^^'  g^^^^  ^^  advantage,  inasmuch  as  he  '-'would 
be  entitled  to  credit  during  the  time  the  bill  had 
to  run  {u)} 

(w)  Williams  v.  Harrison,  Garth.  160;  Williamson  v.  Watts,  1  Camp.  552; 
Harrison  v.  Cotgreave,  4  C.  B.  (56  E.  C.  L.  E.)  562 ;  16  L.  J.  (C.  P.)  198. 


^  Although  in  Ayliff  v.  Archdale,  Cro.  Eliz.  920,  a  distinction  was  taken 
between  a  bond  with  a  penalty,  given  for  necessaries,  and  an  obligation  for  the 

,  exact  sum,  yet  it  has  been  since  repeatedly  held,  that  an  infant  is  neither 
liable  upon  a  bond,  bill,  or  note,  given  for  necessaries,  nor  upon  an  agreement 

'  to  pay  a  certain  sum  for  them,  on  the  ground  that  the  infant  is  not  to  be  pre- 
cluded by  the  form  of  the  contract,  from  his  right  of  showing  the  actual  worth 
of  the  articles:  Earle  v.  Peale,  Balk.  386,  pi.  2;  Probart  v.  Knouth,  2  Esp. 
472  n. ;  Beeler  v.  Young,  1  Eibb,  519  ;  McCrillis  v.  How,  3  N.  H.  348  ;  or,  as  it 
should  be  more  correctly  said,  because  the  only  contract  on  which  an  infant 
is  liable,  is  the  implied  contract  for  necessaries :  Roof  v.  Stafibrd,  7  Cow.  182 ; 
Tucker  v.  Moreland,  1  Am.  L.  C.  244.  Nor  is  he  liable  for  money  lent  to  enable 
him  to  procure  necessaries,  on  the  ground  that  the  contract  arises  upon  the 
lending  ;  and  the  subsequent  application  of  the  money  for  necessaries,  cannot, 
by  matter  thus  ex  post  facto,  make  the  contract  binding :  Earle  v.  Peale ;  Walker 
V.  Simpson,  7  W.  &  S.  88.  In  equity,  however,  it  is  considered  that  where  the 
money  is  thus  actually  applied,  the  lender  may  stand  in  the  place  of  the  in- 
fant's creditor,  who  has  been  satisfied,  and  be  subrogated  to  his  rights:  Mar- 
low  V.  Pitfeild,  1  P.  Wms.  559;  Eeelec  v.  Young,  Walker  v.  Simpson,  svpra; 
Best  V.  Manning,  10  Vt.  230 ;  and,  at  law,  money  -paid  at  the  infant's  request 
for  necessaries,  may  be  recovered  under  a  count  for  money  paid :  liandall  v. 
Sweet,  1  Den.  460 ;  Conn  v.  Coburn,  7  N.  H.  368 ;  or,  it  was  held,  in  Smith  v. 
Oliphant,  2  Sand.  306,  under  a  count  for  money  lent  and  advanced. 

But  although  a  recovery  may  not  be  had  upon  a  note  given  by  an  infant  for 
necessaries,  yet  the  mere  fact  of  the  note  having  been  given,  will  not  of  course' 
preclude  the  plaintifi'  from  recovering  the  value  of  the  necessaries  which 
formed  its  consideration:  Earle  v.  Eeed,  10  Mete.  387  ;  McCrillis  v.  Howe,  3 
N.  I-I.  348  ;  M'Minn  v.  Richmonds,  6  Y^erg.  9. 

The  first  of  these  cases,  however,  Avent  somewhat  further.     The  plaintiff's 
declaration  contained  a  count  on  a  promissory  note  given  by  an  infant,  and  an 
account  for  goods  sold  and  delivered.     The  plaintiff  gave  the  note  in  evidence, 
338 


LECT.  VIII.]  IXFANTS.  321 

Again,  he  cannot  bind  himself  by  stating  an  account; 
although  the  items  of  the  account  be  all  recoverable 
against  him  as  for  necessaries  (x).  Indeed,  in  many 
instances,  the  statement  of  an  account  often  requires  so 
very  large  a  share  of  that  kind  of  knowledge  which  is 
derived  from  actual  experience  alone,  that  there  are 
perhaps  few  transactions  for  which  the  young  commonly 
are  less  prepared ;  he  cannot  bind  himself,  therefore,  by 
stating  an  account.  For  a  similar  reason  an  infant  is 
not  bound  by  an  agreement  to  refer  a  dispute  to  arbitra- 
tion (y),  nor  can  he  render  himself  liable  by  borrow- 

(x)  Trueman  v.  Hurst,  1  T.  R.  40 ;  Ingledew  v.  Douglas,  2  Stark.  (3  E.  C.  L. 
R.)  36 ;  Oliver  v.  Woodroffe,  4  M.  &  W.  650 ;  Williams  v.  Moor,  11  M.  &  W. 
256.  See  London  and  N.  Western  Ry.  Co.  v.  M'Michael,  and  Birkenhead 
ditto  V.  Pilcher,  20  L.  J.  (Ex.)  97  ;  5  Ex.  114. 

(y)  Watson  on  Awards,  c.  3,  e.  1. 

and  proved  the  sale,  delivery,  and  value  of  the  necessaries  which  formed  its 
consideration.  The  remedy  on  the  original  contract  was,  however,  barred  by 
the  Statute  of  Limitations,  but  a  local  statute  in  Massachusetts  prevents,  to 
8on>e  e.xtent,  the  bar  of  the  limitation  act,  in  cases  of  notes  attested  by  a  wit- 
ness and  sued  by  the  original  payee,  which  was  the  case  in  this  instance. 
Under  these  circumstances,  it  was  contended  on  behalf  of  the  defendant,  that 
he  was  not  originally  liable  on  the  note,  under  the  principles  just  stated, — th.it 
never  having  ratified  it,  it  was  voidable,  and  useless  therefore  in  that  action 
for  any  purpose, — and  that  the  plaintiff"  when  thrown  back  to  the  considera- 
tion of  the  note,  could  not  recover  by  reason  of  the  lapse  of  time.  The  Court, 
however,  held  that,  as  a  general  principle,  there  was  nothing  to  prevent  an 
infant's  liability  on  an  express,  as  well  as  on  an  implied  contract  for  neces- 
saries, provided  the  consideration  were  always  left  open  for  proof  as  to  reason- 
ableness of  amount,  &c.,  and  the  Court  saw  no  reason  why  the  statute  referred 
to,  should  not  apply  to  the  case  of  a  note  given  by  a  minor,  as  Avell  as  in  the 
case  of  an  adult.  The  previous  case  of  Stone  v.  Dennison,  13  Pick.  1,  Iiad  also 
taken  tlie  ground  that  an  infant  could  be  liable  on  a  special  contract  for  neces- 
saries, in  every  case  where  the  consideration  was  thus  subject  to  proof,  and  it 
was  thus  said  that  a  contrary  rule  might  subject  the  infant  to  hardship  in 
cases  where,  by  the  terms  of  the  contract,  the  price  of  the  necessaries  was  less 
than  could  be  recovered  on  a  quantam  valebat.  It  has,  however,  been  observed 
of  the  first  of  these  cases  (by  Mr.  Wallace,  in  the  note  to  Tucker  v.  Moreland, 
supra),  that  it  is  "  inconsistent  with  principle,  as,  in  a  count  on  a  special  and 
express  contract,  all  or  none  should  be  recovered ;"  and  it  may  be  remarked 
of  the  reason  given  in  Stone  v.  Dennison,  that  the  general  rules  of  law  as  to  in- 
fants are  made  for  their  protection,  and  lose  their  application  when  their 
reason  ceases :  Jefibrd's  Adm.  v.  Ringgold,  6  Ala.  584. — r. 

339 


321  PARTIES    TO    CONTEACTS.  [lECT.  VIII. 

ing,  even  to  lay  out  upon  necessaries  the  money  bor- 
rowed (z). 

In  Oliver  v.  Woodroffe,  just  cited  (a),  the  infant  had 
given  a  cognovit  (which,  as  you  are  no  doubt  aware,  is 
an  acknowledgment  by  a  defendant  that  an  action 
r*^991  brought  against  him  is  rightly  brought,  *and 
that  a  named  sum  is  due  to  the  plaintiff),  and 
it  was  admitted  that  it  was  given  for  necessaries  sup- 
plied to  the  infant.  It  was  argued,  that  as  an  action 
might  have  been  brought  against  him  for  the  necessaries, 
he  ought  to  be  allowed  to  confess  that  action,  in  order 
to  save  further  expense.  But  the  Court  of  Exchequer, 
after  considering  the  point,  held  that  the  cognovit  could 
not  be  enforced  against  the  infant,  because  by  that  means 
a  minor  would  be  made  to  state  an  account,  which  the 
law  will  not  allow  him  to  do,  so  as  to  bind  himself.  If 
an  action  be  brought  against  him,  it  is  for  the  jury  to 
determine  the  reasonableness  of  the  demand.  Again, 
the  general  principle  being  that  an  infant  shall  be 
bound  by  no  contract  which  is  not  beneficial  to  him  ib), 
it  is  held  that  he  can  engage  in  none  in  which  the  per- 
formance of  the  contract  is  secured  by  a  penalty ;  for 
that  it  cannot  be  for  his  advantage  to  become  subject  to 
a  penalty ;  and,  therefore,  though  the  old  books  lay  it 
down  that  he  may  bind  himself  by  a  deed  to  pay  for 
necessaries  (c),  yet  it  is  clearly  settled  that  he  cannot 
do  so  by  a  bond  containing  a  penalty  [d).     A  variety 

:  (2)  Earle  i-.  Peale,  1  Salk.  386 ;  Probart  v.  Knouth,  2  Esp.  472,  note.  But 
see  as  to  the  rule  of  Equity  in  such  case,  Marlow  v.  Pitfield,  1  P.  VVms.  658. 

(a)  Note  (x). 

(6)  See  Stikeman  v.  Dawson,  16  L.  J.  (Ch.)  205 ;  and  for  instances  of  con- 
tracts for  work  and  wages  held  void  as  containing  stipulations  not  for  the 
benefit  of  the  infant,  see  E.  v.  Lord,  12  Q.  B.  757;  17  L.  J.  (M.  C.)  181 ; 
Meakin  v.  Morris,  12  Q.  B.  D.  852;  53  L.  J.  (M.  C.)  72. 

(c)  Com.  Dig.  Infant,  B.  5. 

(d)  Ayliff  D.  Archdale,  Cro.  Eliz.  92  )  Corpe  v.  Overton,  10  Bing.  (25  E.C. 
L.  E.)  252. 

340 


LECT.  VIII.]  INFANTS.  322 

of  other  examples  miglit  be  given ;  but  I  think  pj^ooo-i 
*wliat  I  have  said  sufficient  to  exphiin  the  gen-  '-  -^ 
eral  nature  of  an  infant's  liability  and  exemption  from 
liability. 

This  rule  that  an  infant  shall  not  be  allowed  to  bind 
himself  by  contracts  made  in  trade,  although,  looking 
at  it  with  regard  to  the  present  state  of  education  and 
society,  it  may  appear  not  to  be  so  requisite  as  once  it 
was,  yet  looking  at  it  upon  general  principles,  it  is  capa- 
ble of  being  defended  by  some  strong  arguments.  The 
consequences  of  failure  in  trade  ai"e  so  fatal,  not  merely 
to  the  property,  but  often  to  the  reputation  of  the  un- 
successful trader — and  a  failing  trader  is  so  often,  in  his 
struggles  to  save  himself  from  utter  shipwreck,  and  to 
keep  up  a  good  appearance  in  the  sight  of  the  world, 
induced  to  have  recourse  to  disingenuous  and  reprehen- 
sible expedients — that  possibly,  upon  reflection,  it  may 
be  thought  not  unwise  to  guard  young  persons  up  to  a 
certain  point  against  the  accidents  and  temptations  of 
mercantile  speculation,  and  to  insure  to  them,  as  far  as 
possible,  the  advantage  of  starting  fair  in  life  with  for- 
tunes unimpaired  and  characters  unblemished.  How 
grievous  would  be  the  situation  of  a  young  person  be- 
ginning life  at  one-and-twenty  an  undischarged  bank- 
rupt. Against  such  a  chance,  the  law,  as  it  now  stands, 
effectually  guards  him  ;  for,  as  an  infant  cannot  make 
himself  liable  on  trade  contracts,  so  he  ^cannot  ^0.9^-1 
be  adjudicated  a  bankrupt  for  a  trade  debt  (e).  '-      "  -^ 

(e)  Ez  parte  Jones,  In  re  Jones,  18  Ch.  Div.  109;  50  L.  J.  (Ch.)  673;  R.  v. 
Wilson,  5  Q.  B.  D.  28 ;  49  L.  J.  (M.  C.)  13 ;  Belton  v.  Hodges,  9  Bing.  (23  E. 
C.  L.  R.)  365.  Where,  however,  there  lias  been  an  express  representation  by 
an  infant  carrying  on  a  trade,  that  he  was  of  full  age,  the  person  to  whom 
such  representation  has  been  made  and  who  has  been  deceived  by  it  into  giv- 
ing tlie  infant  credit,  may  prove  for  the  loss  which  he  has  sustained  under  an 
adjudication  of  bankruptcy  made  against  the  trader  after  he  has  attained  full 
age.  Ex  parte  Unity  Banking  Association,  3  De  G.  &  J.  63 ;  27  L.  J.  (Bkptcy.) 
33  ;  Ex  parte  Jones,  In  re  Jones,  supra. 

341 


324  PARTIES   TO   CONTRACTS.  [lECT.  VIII. 

Now,  therefore,  the  general  rule  being  that  an  infant 
cannot  bind  himself  except  for  necessaries,  next  comes 
the  question — Suppose  he  do,  in  fact,  enter  into  a  con- 
tract for  something  not  falling  under  that  denomination, 
what  will  be  the  consequence  ?  The  answer  to  this  is, 
now,  that  no  action  can  be  maintained  against  him  dur- 
ing his  infancy  upon  any  such  contract,  nor  afterwards, 
not  even  although  by  fraudulently  representing  himself 
to  be  of  age  he  induced  the  j)laintiff  to  contract  with 
him  (/).  But  formerly  there  was  this  to  be  added,  that 
the  contract  was  not  absolutely  void,  but  voidable  ;  and 
therefore,  when  he  arrived  at  the  age  of  twenty-one,  he 
might  confirm  it,  and,  if  he  did  so,  he  would  become 
liable  to  an  action  upon  it  (g)} 

[I  will  exemplify  this  by  the  case  of  Goode  v.  Har- 

(/)  Bartlett  v.  Wells,  31  L.  J.  (Q.  B.)  57  ;  De  Eoo  v.  Foster,  12  C.  B.  N.  S. 
(104  E.  C.  L.  R.)  272. 

{g)  Goode  v.  Harrison,  5  B.  &  Aid.  (7  E.  C.  L.  E.)  147 ;  Ex  parte  Unity 
Banking  Ass.,  supra. 


'  A  defendant  is  not  estopped  from  setting  up  infancy  as  a  defence  to  an  ao 
tion  on  a  contract,  by  his  fraudulent  representation  that  he  was  of  full  age 
Merriam  v.  Cunningham,  11  Cush.  40.  But  see  Prouty  v.  Edgar,  6  Iowa,  353 
Kemp  V.  Cook,  18  Md.  130. 

As  to  contracts  of  infants  being  only  voidable  and  not  void,  see  Strain  v 
Wright,  7  Ga.  568;  Slocum  v.  Hooker,  13  Barb.  536;  Levering  v.  Heighe,  2 
Md.  Ch.81;  West  v.  Penny,  16  Ala.  186;  Eidgeley  u.  Crandall,  4  Md.  435 
Cummings  v.  Powell,  8  Tex.  80;  Ferguson  v.  Bell,  17  Mo.  347.  The  deed  ot 
an  infant  is  voidable — not  void.  It  is  good,  therefore,  until  disaffirmance 
Vxn  Nostrand  v.  Wright,  Hill  &  Den.  260;  Voorhies  v.  Voorhies,  24  Barb. 
150;  Pitcher  v.  Laycock,'7  Ind.  898  ;  Peterson  v.  Laik,  24  Mo.  541 ;  Babcock 
V.  Doe,  8  Ind.  110;  Palmer  v.  Miller,  25  Barb.  399;  Wellborn  v.  Rogers,  24 
Ga.  558  ;  Stuart  v.  Baker,  17  Tex.  417 ;  GrifBth  v.  Schwenderman,  27  Mo.  412; 
Mustard  v.  Wohlford,  15  Gratt.  329;  Johnson  v.  Rockwell,  12  Ind.  76;  Magee 
V.  Welsh,  18  Cal.  155;  Blankenship  v.  Stout,  25  111.  132;  Jenkins  v.  Jenkins, 
12  Iowa,  195 ;  State  v.  Plaisted,  43  N.  H.  413.  An  infant's  voidable  deed  may 
be  ratified  not  only  by  express  affirmance,  but  by  omission  to  disaffirm  within 
a  reasonable  time:  Hastings  v.  Dollarhide,  24  Cal.  195.  Also  by  any  deliber- 
ate act  by  which  he  takes  benefit  under  it,  or  recognizes  its  validity  after  he 
comes  of  age :  McCormic  v.  Leggett,  8  Jones,  425. — s. 
342 


LECT.  VIII.]  INFANTS.  324 

rison  (i).^  A  person  of  the  name  of  Goode  entered 
into  a  trading  partnership  with  an  infant  under  the  age 
of  twenty-one,  named  Bennion  ;  a  third  person,  named 
Harrison,  supplied  them  with  goods,  and  after  Bennion 
came  of  age,  he  took  no  step  to  signify  to  the  world 
that  he  disclaimed  the  connection  with  Goode,  but,  on 
the  contrary,  allowed  it  to  be  supposed  that  he  was  still 
hi  partnership  with  him.  After  this,  Harrison  sup- 
plied Goode  with  more  articles,  and  brought  an  action 
against  him  for  the  price,  jointly  with  Bennion,  as  a 
co-defendant.  Bennion  set  up  his  infancy,  and  urged 
that,  as  an  infant  cannot  bind  himself  by  a  contract 
made  in  the  course  of  trade,  his  agreement,  while  under 
age,  to  become  Goode's  partner,  was  not  binding  upon 
him,  and  consequently,  that  not  being  Goode's  partner, 
he  was  not  liable  for  the  articles  supplied  to  him.  On 
the  other  hand,  it  was  urged  that,  admitting  the  part- 
nership contracted  while  he  was  an  infant  to  be  voida- 
ble, it  was  nevertheless  in  his  option,  when  he  arrived 
at  his  full  age  of  one-and- twenty,  to  adopt  and  confirm 
it ;  that  by  his  conduct  he  had  done  so ;  and  that  con- 
sequently he  was  liable  for  the  goods  supplied  after- 
wards. The  question  was  argued,  as  you  may  suppose, 
with  great  ability,  the  counsel  being  Mr.  Baron  Parke 
and  the  late  Mr.  Justice  Littledale.  The  Court  decided 
in  favour  of  the  plaintiff.  The  principle  is  clearly  and 
strictly  laid  down  in  the  judgment  of  Mr.  Justice  Bay- 
ley  : — "  It  is  clear,"  says  his  Lordship,  "  that  an  infant 
may  be  in  partnership.  It  is  true  that  he  is  not  liable 
for  contracts  entered  into  during  his  infanc}" ;  but  still 

(i)  5  B.  &  Aid.  (7  E.  C.  L.  K.)  147 ;  Unity  Banking  Ass.  v.  King,  supra. 

^  The  portion  of  the  text  included  within  brackets  is  from  the  sixth  Eng- 
lish edition  of  the  work.  Though  now  obsolete  in  England  {infra  *325)  it 
lias  been  deemed  proper  to  insert  it,  together  with  the  valuable  notes  of  Mr. 
Rawle  and  Judge  Sharswood,  as  still  applicable  in  this  country. 

343 


324  PARTIES   TO    CONTRACTS.  [lECT.  VTII. 

he  may  be  a  partner.  If  he  is  in  point  of  fact  a  part- 
ner during  his  infancy,  he  may,  when  he  comes  of  age, 
elect  whether  he  will  continue  that  partnership  or  not 
If  he  continue  the  partnership,  he  will  then  be  liable 
as  a  partner.^  If  he  dissolve  the  partnership,  and  if 
when  of  age  he  take  the  proper  means  to  let  the  world 
know  that  the  partnership  is  dissolved,  then  he  will 
cease  to  be  a  partner." 

It  is  easy  to  apply  this  mode  of  reasoning  to  any 
other  sort  of  contract  (ii).  Thus,  if  he  makes  a  lease 
of  his  land,  which  is  binding  if  for  his  benefit,  but  not 
otherwise,  and  after  majority  accepts  rent,  and  by  other 
acts  affirms  the  contract,  this  is  strong  evidence  that  the 
lease  is  beneficial  and  binding  (iii) ;  or  if  an  infant 
lessee  remains  in  possession  of  the  house  or  land 
demised,  and  pays  rent  after  majority,  he  cannot  re- 
pudiate it  afterwards,  but  it  is  confirmed  from  the 
beginning  (iv).  This  head  of  law  has  been  much  and 
elaborately  considered  in  several  recent  cases,  in  which 
the  liability  of  an  infant  holder  of  railway  shares  to  pay 
the  calls  upon  them  has  been  in  dispute.  The  argu- 
ments and  judgments  in  these  cases  (which  are  cited 

(ii)  Southerton  v.  Whitelock,  1  Str.  690. 

(iii)  Shep.  Touch.  268;  Ashfieldti.  Ashfield,  Sir  W.  Jones,  157. 
(iv)  Ketsey's  case,  Cro.  Jac  320 ;  Holmes  v.  Blogg,  8  Taunt.  (4  E.  C.  L.  R.) 
35.     See  ex  parte  Taylor,  in  re  Burrows,  25  L.  J.  (Bkptcy.)  85. 

'  A  question  may  here  arise  as  to  the  extent  of  the  liability  for  the  pre- 
vious debts  of  the  firm,  and  in  Miller  v.  Sims,  2  Hill  (S.  C.)  479,  it  was  held 
that  inasmuch  as  in  general  one  partner  could  bind  the  firm  by  contracts 
made  without  the  knowledge  of  the  other,  to  say  that  one  may  enter  into 
or  affirm  a  partnership  without  incurring  these  liabilities,  would  be  to  say 
that  one  may  aflirra  a  contract  of  partnership  and  disaffirm  that  which  is 
inseparably  incident  to  it,  and  the  defendant,  who  had,  by  his  acts  of  re- 
ceiving partnership  funds,  &c.,  affirmed  a  partnership,  begun  while  he  wa« 
yet  an  infant,  was  therefore  held  liable  on  a  note  given  by  the  other  partner, 
before  such  affirmation,  of  which  he  had  no  knowledge,  and  which  he  re- 
fused to  pay  when  informed  of  it.  A  decision,  apparently  to  the  contrary,  in 
Crabtree  v.  May,  1  B  Mon.  289,  will,  on  examination,  be  found  to  have  turned 
ou  the  insufficiency  of  the  replication. — B. 

344 


LECT.  YIII.]  INFANTS.  324 

below)  demand  a  very  careful  perusal,  and  will  amply 
repay  it  in  the  very  full  view  which  they  give  of  the  j^rin- 
ciple  now  under  discussion,  and  the  application  of  it. 
Assuming,  according  to  the  opinion  of  the  Court  of  Ex- 
chequer, that  the  question  of  the  infant's  liability  does 
not  depend  conjointly  upon  the  Act  creating  the  com- 
2>any,  and  upon  the  Companies  Clauses  Consolidation 
Act,  8  &  9  Vict.,  c.  16,  but  upon  the  Common  Law,  it 
has  been  repeatedly  decided,  that,  w^here  an  infant  be- 
comes the  holder  of  shares  by  his  own  contract  and 
subscription,  he  i?,  prima  facie  liable  to  pay  the  calls  (v) ; 
he  may  repudiate  that  contract  and  subscription,  and  if 
he  does  so  while  an  infant,  although  he  may  on  arriv- 
ing at  full  age  affirm  his  repudiation,  or  receive  the 
profits,  it  is  for  those  who  insist  upon  his  liability  to 
make  out  these  facts  (vi).  Infants  having  become 
shareholders  in  railway  companies,  have  been  held 
liable  to  pay  calls.  "  They  are  purchasers,"  said  the 
Court  of  Exchequer  in  the  London  and  North  AVestern 
Kailway  Company  v.  M'Michael,  "who  have  acquired 
an  interest  not  in  a  mere  chattel,  but  in  a  subject  of  a 
permanent  nature,  either  by  contract  with  the  Company, 
or  by  devolution  from  those  who  have  so  contracted, 
and  with  an  obligation  attached  to  it  w^hich  they  are 
bound  to  discharge,  and  have  been  thereby  placed  in  a 
situation  analogous  to  an  infant  purchaser  of  real  estate, 
who  has  taken  possession,  and  thereby  become  liable  to 
all  the  obligations  attached  to  the  estate ;  for  instance, 
to  pay  rent  in  case  of  a  lease  rendering  rent,  or  to  pay  a 
fine  due  on  an  admission  in  the  case  of  copyhold,  to 
which  an  infant  has  been  admitted  (vii),  unless  they  have 

(v)  London  and  Nortli  Western  Ry.  Co.  v.  M'Michael,  20  L.  J.  (Ex.)  97  ; 
5  Ex.  114.  See  Cork  and  Bandon  Ry.  Co.  v.  Cazenove,  10  Q.  B.  (59  E.  C.  L. 
R.)  935. 

(vi)  Newry  and  Enniskillen   Ry.  Co.  v.  Coombe,  3  Ex.  565. 

(vii)  Evelyn  v.  Chichester,  3  Burr.  1717. 

345 


324  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

elected  to  waive  or  disagree  to  the  purchase  altogether, 
either  during  infancy  or  after  full  age,  at  either  of  which 
times  it  is  equally  competent  for  an  infant  so  to  do." 
Thus,  where  there  has  been  no  waiver  or  repudiation, 
the  infant  continues  liable  to  pay  the  calls ;  and  where 
the    infant   avoids   the    contract  for  purchase   during 
minority,  he  is  not  liable.     If,  after  full  age,  the  party 
repudiates  a  contract  made  during  his  infancy,  it  may 
be   gathered   from    what   has    been   said,    and   indeed 
hardly  requires  stating,  that  he  must  do  so  within  a 
reasonable  time  after  he  comes  of  age  (viii).     Plowever, 
in  order  to  prevent  persons  from  inconsiderately  con- 
firming contracts  made  by  them  during  infancy,  and  to 
obviate  the  danger  of  attempts  to  foist  such  confirma- 
tion on  them  by  false  evidence,  it  is  enacted,  as  we  have 
already  seen    (ix),  by  9  Geo.  IV.,  c.  14,  s.  5,  that   no 
action  shall  be  maintained  whereby  to  charge  any  per- 
son upon  any  promise  made,  after  full  age,  to  pay  any 
debt  contracted  during  infancy,  or  upon  any  ratification 
after  full  age  of  any  promise  or  simple  contract  made 
during  infancy,  unless  such  promise  or  ratification  shall 
be  made,  by  some  writing,  signed  by  the  party  to  be 
charged  therewith.^] 

(viii)  Dublin  and  Wicklow  Ey.  Co.  v.  Black,  22  L.  J.  (Ex.)  94;  8  Ex.  181, 
B.  c. 

(ix)  See  ante,  p.  *152. 


^  It  has  been  seen  in  a  former  part  of  these  Lectures,  that  any  acknowledg- 
xnent,  not  inconsistent  with  a  promise  to  pay,  such  as  a  partial  payment,  will 
be  sufficient  to  remove  the  bar  of  the  Statute  of  Limitations.  It  is  not  so, 
however,  with  respect  to  the  ratification  of  contracts  made  during  infancy. 
There  must  either  be  a  direct  affirmation  fas  in  the  case  cited,  supra,  by  con- 
tinuing the  business,  or,  in  the  case  of  a  chattel,  by  retention  of  the  possession, 
selling  it  again,  or  the  like :  see  Lawson  v.  Lovejoy,  8  Me.  405 ;  Aldrich  v. 
Grimes,  10  N.  H.  194;  Kline  v.  Beebe,  6  Conn.  494;  Boyden  v.  Boyden,  9 
Mete.  519 ;  Thomasson  v,  Boyd,  13  Ala.  419;  Meriweather  v.  Herran,  8  B. 
Mon.  162) ;  or  an  express  promise  to  pay,  made  voluntarily,  with  full  knowl- 
edge of  the  liability  thus  incurred,  made  to  the  party  himself  or  his  agent, 

346 


LECT.  VIII.]  INFANTS.  325 

*Kecently,  however,  the  law  as  to  the  void-  p.;.o9--| 
ability  and  confirmation  or  ratification  of  con-  '-  -^ 
tracts  made  by  infants  has  been  considerably  altered  by 
the  "Infants  Eelief  Act,  1874"  (37  &  38  Vict.,  c.  62), 
which  was  passed  on  the  7th  Aug.,  1874.  The  1st  and 
2nd  sections  of  that  Act  are  as  follows : 

"  (1.)  All  contracts,  whether  by  specialty  or  by  sim- 
ple contract,  henceforth  entered  into  by  infants  for 
the  repayment  of  money  lent  or  to  be  lent,  or  for 
goods  supplied  or  to  be  supplied  (other  than  con- 
tracts for  necessaries),  and  all  accounts  stated  with 
infants,  shall  be  absolutely  void  :  Provided  always, 
that  this  enactment  shall  not  invalidate  any  con- 
tract into  which  an  infant  may,  by  any  existing  or 
future  statute,  or  by  the  rules  of  common  law  or 
equity,  enter,  except  such  as  now  bylaw  are  voidable. 
"  (2.)  No  action  shall  be  brought  whereby  to  charge 
any  person  upon  any  promise  made  after  full  age 


and  not  to  a  mere  stranger  having  no  interest :  Hinely  v.  Margaritzr,  3  Pa.  St. 
423 ;  Ford  v.  Phillips,  1  Pick.  202 ;  Peirce  v.  Tobey,  5  Mete  168 ;  Hale  v. 
Gerrish,  8  N.  H.  374;  Millard  v.  Hewlett,  19  Wend.  301 ;  AVilcox  v.  Eoath, 
12  Conn.  551  ;  a  mere  acknowledgment  or  partial  payment  will  not  suffice : 
Goodsell  V.  Myers,  3  Wend.  481 ;  Eo])bins  v.  Eaton,  10  N.  H.  561 ;  Hinely  v. 
Margaritz,  supra;  for  the  law  will  imply  no  promise  in  the  case  of  an  infant, 
as  has  been  seen,  except  for  necessaries. — K. 

Tlie  special  contract  of  a  minor  is  ratified  by  his  continuance  in  it  for  a 
month  after  his  majority,  and  cannot  afterwards  be  avoided :  Forsyth  v.  Hast- 
ings, 27  Vt.  646  ;  New  Hampshire  Ins.  Co.  v.  Noyes,  32  N.  H.  345  ;  Hodges  v. 
Hunt,  22  Barb.  150 ;  Little  v.  Duncan,  9  Kich.  55 ;  Baxter  v.  Bush,  29  Vt. 
465  ;  Hartman  v.  Kendall,  4  Ind.  403 ;  Emmons  v.  Murray,  16  N.  H.  385.  A 
voidable  contract  of  an  infant  cannot,  after  his  coming  of  age,  be  ratified  by  a 
mere  acknowledgment  of  the  debt,  but  a  direct  promise  to  pay  or  a  direct  con- 
firmation will  be  evidence  of  such  ratification :  Conklin  v.  Ogborn,  7  Ind.  553 ; 
Eeed  v.  Boshears,  4  Sneed,  118  ;  Chandler  v.  Glover,  32  Pa.  St.  509 ;  Mayer  v. 
McLure,  36  Miss.  389  ;  Vaughan  v.  Parr,  20  Ark.  600 ;  Proctor  v.  Sears,  4 
Allen,  95. 

As  to  what  will  amount  to  ratification :  West  v.  Penny,  16  Ala.  186 ;  Lev- 
ering V.  Heighe,  2  Md.  Ch.  81  ;  Williams  r.  Mabee,  5  N.  J.  Eq.  500  ;  Miles  v. 
Lingerman,  24  Ind.  .S85 ;  Petty  v.  Roberts,  7  Bush,  410 ;  Highley  v.  Barron,  49 
Mo.  103  ;  Baker  v.  Kennett,  54  lb.  82.— s. 

347 


325  PARTIES   TO    CONTRACTS.  [lECT.  VIII. 

to  pay  any  debt  contracted  during  infancy,  or  upon 
any  ratification  made  after  full  age  of  any  promise 
or    contract  {h)    *made    during    infancy, 
L     "■*-'    whether  there  shall  or  shall  not  be  any 
new  consideration  for  such  promise  or  ratification 
after  full  age"  {%). 
It  will  be  observed  on  looking  at  the  above  Act,  that, 
although  the  1st  section  only  makes  certain  sj^ecified  con- 
tracts void,  and  that  therefore  there  are  still  some  con- 
tracts left  which  are  voidable,  yet  inasmuch  as  the  2nd 
section   prevents  any  action  being  brought  upon  any 
ratification  made  after  full  age  of  any  promise  or  con- 
tract made  during  infancy,  such  voidable  contracts  can- 
not form  the  subject  of  any  action  against  the  infant 
when  he  has  attained  full  age.     For  if  voidable  they 
must  be  ratified  to  make  them  valid,  and  the  ratification 
is  now  worthless ;  therefore  as  far  as  the  infant's  liabil- 
ity is  concerned,  there  seems  no  practical   distinction 
between   void  and  voidable  contracts.     We   shall   see, 
however,  that  there  may  be  a  very  important  distinction 
between  them,  in  considering  the  lial)ility  of  the  party 
with  whom  the  infant  contracts. 

Now,  then,  such  being  the  effect  of  an  infant's  con- 
tracts with  regard  to  the  infant  himself,  it  remains  only 
to  say  a  word  or  two  as  to  the  effect  of  those  which  are 
still  voidable  on  the  other  ^contracting  party. 
L    *^  -J  And,  as  to  him,  the  rule  is  {j),  that  he  is  bound 

{h)  The  words  "  any  promise  or  contract "  in  this  section  include  a  promise 
of  marriage,  and  therefore  a  ratification  of  such  a  promise  after  majority  af- 
fords no  longer  a  ground  of  action  on  breach  of  the  promise  (Coxhead  v.  Mul- 
lis,  3  C.  P.  D.  439  ;  47  L.  J.  (Q.  B.,  etc.)  761).  There  may,  however,  be  a  fresh 
promise  made  after  full  age,  which  will  be  binding  (Ditchman  v.  Worrall,  5  C.  P. 
D  410  ;  49  L.  J.  (Q.  B.,  etc.)  688) ;  and  whether  what  has  taken  place  subsequently 
to  the  coming  of  age  amounts  to  a  ratification  or  a  fresh  promise,  is  a  question  for 
the  jury  (Northcote  v.  Doughty,  4  C.  P.  D.  385;  Ditcham  v.  Worrall,  supra). 

(i)  We  have  already  seen  (ante,  p.  *lo2)  that  under  this  section  a  ratification 
made  after  the  Act  of  a  contract  made  in  infancy  before  the  Act  is  void. 

(j)  This  seems  unaltered  by  the  Act  in  respect  of  those  contracts  which  it 

348 


LECT.  Yin.]  INFANTS.  327 

though  the  infant  is  not ;  for,  to  use  the  words  in  "wliich 
the  rule  is  stated,  in  Bacon's  Ab.,  "  Infancy,"  I.  4, — 
"  Infancy  is  a  personal  privilege  of  wliich  no  one  can 
take  advantage  but  the  infant  himself;  and,  therefore, 
though  the  contract  of  the  infant  be  voidable,  yet  it 
shall  bind  the  person  of  full  age;  for,  being  an  indul- 
gence which  the  law  allows  infants,  to  secure  them  from 
the  fraud  and  imposition  of  others,  it  can  only  be  in- 
tended for  their  benefit,  and  is  not  to  be  extended  to 
persons  of  the  years  of  discretion,  who  are  presumed  to 
act  with  sufficient  caution  and  security.  And,  were  it 
otherwise,  this  privilege,  instead  of  being  an  advantage 
to  the  infant,  would  in  many  cases  turn  greatly  to  his 
detriment."^  Thus,  for  instance,  in  Holt  v.  Ward  {Ic),  a 
gentleman  of  full  age  had  promised  to  marry  a  minor. 
It  was  decided  that  she  might  maintain  an  action  against 
him  for  breach  of  promise,  though  he  could  not  have 
done  so  had  she  refused  to  perform  her  side  of  the  con- 
tract.^ Again  (/),  an  infant  was  allowed  *to  p^Qoon 
maintain  an  action  on  a  contract  to  purchase  a    '-        ^ 

still  leaves  voidable.  Those  which  it  makes  void  are  of  course  a  nullity  from 
the  beginning,  but  there  seems  nothing  in  the  Act  to  alter  the  infant's  privi- 
leges, or  the  liability  of  the  other  party  in  respect  of  those  contracts  which 
are  still  voidable. 

{k)  2  Str.  937. 

(I)  Warwick  v.  Bruce,  2  M.  &  Sel.  205 ;  but  gimre  as  to  his  being  able  to  do 
so,  since  the  Infant's  Relief  Act,  in  this  particular  case,  the  contract  being  for 
goods  supplied  or  to  he  supplied,  other  than  necessaries. 


^  Infancy  is  a  personal  privilege,  and  cannot  be  set  up  by  third  persons  to 
avoid  the  contracts  of  the  infant:  Alsworth  v.  Cordtz,  31  Miss.  32;  Wilson  v. 
Porter,  13  La.  An.  407  ;  Jones  v.  Butler,  30  Barb.  641.  The  contract  of  an 
infant  may  be  avoided  by  those  only,  besides  himself,  who  are  privy  in  blood 
or  estate :  Nelson  v.  Eaton,  1  Eed.  498. — s. 

*  The  case  was  four  times  argued :  see  the  report  in  Fitzgib.  175,  275,  and 
the  decision  was  recognized  by  Lord  Hardvvicke,  in  Harvey  v.  Ashley,  3  Atk. 
610,  and  on  this  side  of  the  Atlantic,  the  decisions  in  Hunt  v.  Peake,  6  Cow. 
475 ;  Willard  v.  Stone,  7  lb.  22,  and  Cannon  v.  Alsbury,  1  Marsh.  76,  were  based 
on  its  authority. — r. 

349 


828  PARTIES   TO    CONTRACTS.  [lECT.  VIII. 

growing  crop  of  potatoes,  on  which  no  action  could  have 
been  maintained  against  him.^ 

I  now  come  to  tlie  second  class  of  persons  on  whose 
capacity  to  contract  I  think  it  necessary  to  observe.  I 
mean  that  of  married  women.  But  their  capacity  in 
this  respect  has  been  so  much  affected  by  recent  Acts  of 
Parliament  that  it  will  be  necessary  to  consider  first  the 
state  of  the  Common  Law  upon  the  subject,  and  then 
the  successive  alterations  engrafted  on  that  law  by  the 
Acts  referred  to. 


^  But  liberal  as  is  the  law  towards  infants,  it  does  not  allow  them  to  retain 
possession  of  property,  and  still  repudiate  the  contract  by  whicli  that  posses- 
sion has  been  obtained  ;  and  as  by  the  avoidance  of  the  contract  the  property 
revests  in  the  vendor,  the  latter  may  bring  trover,  replevin,  or  detinue :  Mills 
f.  Graham,  4  B.  &  P.  140  ;  Badger  v.  Phinney,  15  Mass.  359 ;  Boyden  v.  Eoy- 
den,  9  Mete.  519  ;  JefFord  v.  Ringgold,  6  Ala.  544.  And  so  with  respect  to  real 
estate ;  he  cannot  disaffirm  securities  given  for  the  purchase-money,  and  still 
claim  the  land  under  his  deed :  Weed  v.  Beebe,  21  Vt.  495.  If,  however,  the 
goods  liave  been  wasted,  sold  or  otherwise  disposed  of  by  the  infant  after  the 
coming  of  age,  tliese  acts,  as  we  have  seen,  amount  to  an  affirmation  of  the 
contract,  and  he  will  then,  the  bar  of  infancy  being  tlius  removed,  be  liable 
upon  the  contract ;  but  if  the  goods  have  been  wasted  or  sold  during  infancy, 
neitlier  trover  nor  detinue  will  lie,  for  a  refusal  after  age  to  deliver,  when  he 
has  not  the  goods,  is  no  conversion :  Fitts  v.  Hall,  9  N.  H.  441 ;  Boody  v.  Mc- 
Kenney,  23  Me.  517 ;  and  detinue  does  not  lie  where  the  goods  liave  been 
parted  with  in  a  manner  authorized  by  law  :  Pool  v.  Adkisson,  1  Dana,  110. 

Upon  the  subject  of  an  infant's  liability  for  torts,  the  manner  in  which  he 
is  made  a  party  to  an  action,  and  many  other  important  branches  of  this  sub- 
ject, the  student  is  again  referred  to  the  note  to  Tucker  v.  Moreland,  1  Am.  L» 
C— R. 

An  infant  cannot  rescind  a  contract,  and  bring  an  action  to  recover  the  value 
of  the  property  parted  with,  without  restoring  to  the  other  party  the  value 
with  which  he  parted:  Bailey  v,  Bamberger,  11  B.  Mon.  113;  Womack  v. 
Womack,  8  Tex.  397.  In  a  suit  by  an  infant  for  the  consideration  of  a  con- 
tract avoided  by  him  he  must  show  a  return  of  the  property  sold  to  him,  if  it 
remains  in  his  possession.  But  its  entire  consumption  or  great  deterioration 
by  him  is  no  defence  to  the  action :  Price  v.  Furman,  27  Vt.  268  ;  Manning  v. 
Johnson,  26  Ala.  446;  Craighead  v.  Wells,  21  Mo.  404;  Burns  v.  Hill,  19  Ga. 
22;  Aldrich  v.  Abrahams,  Hill  &  Den.  423;  Tipton  v.  Tipton,  3  Jones,  552; 
Pitcher  v.  Laycock,  7  Ind.  398  ;  Wilhelm  v.  Hardman,  13  Md.  140 ;  Kilgore  v. 
Jordan,  17  Tex.  341 ;  Mustard  v.  Wohlford,  15  Gratt.  329 ;  Locke  v.  Smith,  41 
N.  H.  346 ;  Pursley  v.  Hays,  17  Iowa,  311.~B. 

350 


LECT.  VIII.]  MARRIED    WOMEN.  328 

Now  a  contract  by  or  with  a  married  woman  is  one 
of  two  sorts :  it  is  either  a  contract  which  she  entered 
into  before  her  marriage,  and  which  continued  in  exist- 
ence afterwards ;  or  it  is  a  contract  which  she  entered 
into  subsequently  to  her  marriage. 

Now,  with  regard  to  the  former  description  of  con- 
tracts, by  the  Common  Law,^  unquahfied  by  the  provi- 
sions of  recent  legislation,  upon  the  marriage,  the  bene- 
fit of,  and  the  liability  to,  the  wife's  contracts  made 
before  marriage,  vest  in  the  husband,  and  continue 
vested  in  him  during  the  continuance  of  the  marriage  (m). 
If  she  die  before  they  are  enforced,  and  he  survive  her, 
he  is  entitled  to  *the  benefit  of  such  contracts,  n::QOQ-i 
not  in  his  own  right,  but  as  her  administra-  ^  J 
tor  {n)^  and  is  liable  to  be  sued  on  them,  not  in  his 
individual  capacity,  but  as  his  wife's  administrator. 
Thus,  in  an  action  on  a  promissory  note,  brought 
by  the  administrator  of  Ann  Hart,  it  was  proved 
that  it  was  made  by  the  defendant  and  delivered 
by  him  to  Ann  Hart,  who  was  then  a /erne  sole,  but  who 
afterwards  married  William  Hart  (not  her  administca- 

(m)  Mitchinson  v.  Hewson,  7  T.  E.  348 ;  Com.  Dig.  tit.  "  Baron  and  Feme," 
E.  3.     See  Milner  v.  Milnes,  3  T.  R.  627 ;  Sel.  N.  P.  243,  13th  ed. 
(n)  Betts  V.  Kimpton,  2  B.  &  Ad.  (22  E.  C.  L.  R.)  273. 

'  The  reader  will  note,  perhaps  with  surprise,  that  no  reference  is  made  in 
the  succeeding  pnges  to  American  statutes  affecting  married  women.  But 
these  have  become  so  numerous  during  the  last  thirty-five  years,  and  vary  so 
greatly  in  the  different  States,  that  it  does  not  appear  practicable  to  reduce 
them  to  anything  like  order  or  to  make  an  epitome  of  them  which  will  be  at 
all  complete  and  accurate,  within  the  limits  necessarily  prescribed  in  this  work. 

»  Collins  V.  Hoxie,  9  Paige,  81 ;  Hunter  v.  Hallett,  1  Edw.  Ch.  388  ;  Coleman 
V.  Waples,  1  Harring.  196.  So  that  if  the  husband  die  without  having  taken 
out  letters  of  administration,  his  administrator  cannot  recover  her  choses  in 
action,  but  administration  must  be  taken  out  to  the  wife :  Betts  v.  Kimpton, 
2  B.  &  Ad.  (22  E.  C.  L.  R.)  273 ;  Squib  r.  Wyn,  1  P.  Wms.  378  ;  Stewart  v. 
Stewart,  7  Johns.  Ch.  229.  If,  however,  the  husband  has  taken  out  letters 
of  administration  to  his  wife's  estate,  and  die  before  its  full  administration,  his 
representative  is,  in  the  absence  of  any  statutory  enactment,  entitled  to 
administration  de  honis  nou  :  Donnington  v.  Mitchell,  2  N.  J.  Eq.  243. — R. 

351 


329  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

tor),  and  died  intestate  in  his  lifetime.  The  Court  held 
that  the  note  clearly  did  not  become  the  property  of 
William  Hart,  but  passed  to  the  plaintiff  as  her  ad- 
ministrator ;  and  that  the  husband,  not  having  obtained 
administration  to  his  wife,  had  no  interest  in  the  note  (o). 
If  she  survive  him,  her  right  to  the  benefit  of,  and  her 
liability  upon,  such  contract  revives,  assuming  always 
that  nothing  has  been  done  to  put  an  end  to  the  contract 
during  the  continuance  of  the  marriage  (p).^  "With 
respect  to  debts  due  to  the  wife  dum  sola,  the  husband," 
says  Lord  Ellenborough,  *'is  her  irrevocable  attorney, 
if  I  may  say  so :  and  if  he  reduce  them  into  possession 

(o)  Hart  V.  Stephens,  6  Q.  B.  (51  E.  C.  L.  R.)  937. 

[p]  Rumsey  t;.  George,  1  M.  &  Sel.  176;  Fitzgerald  v.  Fitzgerald,  8  C.  B. 
(65  E.  C.  L  R.)  692. 

1  Blount  V.  Bestland,  5  Ves.  Jr.  315;  Schuyler  v.  Hoyle,  5  Johns.  Ch.  196; 
Hayward  v.  Hayward,  20  Pick.  517 ;  Strong  v.  Smith,  1  Mete.  476;  Weeks  v. 
Weeks,  5  Ired.  Eq.  Ill,  where  tlie  previous  cases  in  Korth  Carolina  are 
noticed.  The  result  briefly  is,  at  Common  Law,  that  for  all  the  debts  of 
the  wife,  contracted  before  marriage,  no  matter  how  improvident  they  may 
be,  the  husband  is  personally  liable  during  coverture,  and  no  longer,  and  this 
though  he  may  not  have  received  a  cent  by  her;  and,  on  the  other  hand,  upon 
her  death,  his  personal  liability  for  her  debts  contracted  before  marriage 
is  wholly  wiped  out,  though  he  may  have  received  a  fortune  by  her.  The 
apparent  injustice  of  this  latter  rule,  than  which  nothing  is  better  settled 
(Tabb  V.  Boyd,  4  Call,  453 ;  Buckner  v.  Smyth,  4  Desaus.  371 ;  Witherspoon  v. 
Dubose,  1  Bai.  Eq.  166),  has  often  been  strongly  urged,  and  equity  been  in- 
voked to  modify  it,  and  Lord  Nottingham  is  reported  to  have  said,  with  some 
earnestness,  that  "  he  would  alter  the  law  on  that  point ;"  but  in  Heard  v. 
Stamford,  Cas.  Temp.  Talbot,  s.  c.  3  P.  Wms.  411,  the  Chancellor  said,  "It  is 
extremely  clear  that  by  law  the  husband  is  liable  for  the  wife's  debts  only 
during  the  coverture,  unless  the  creditor  recovers  judgment  against  him  in  the 
.wife's  lifetime,  and  I  do  not  see  how  anything  less  than  an  act  of  Parliament 
can  alter  the  law.  If  I  relieve  against  the  husband  because  he  had  sufficient 
assets  with  his  wife  wherewith  to  satisfy  the  demand  in  question,  by  the  same 
reason,  where  a  fevie  indebted  dum  sola  marries,  bringing  no  fortune  to  her 
husband,  and  judgment  is  recovered  against  the  husband,  after  which  the  wife 
dies,  I  ought  to  grant  relief  to  the  husband  against  such  judgment,  which  yet 
is  not  in  my  power,  consequently  there  can  be  no  ground  for  a  court  of  equity 
to  interpose  in  the  present  case;  and  if  the  law,  as  it  now  stands,  be  thought 
inconvenient,  it  will  be  a  good  reason  for  the  legislature  to  alter  it,  but  till 
that  is  done,  what  is  law  at  present  must  take  place."  See  to  the  same  effect 
the  remarks  of  Lord  Redesdale  in  Adair  v.  Shaw,  1  Sch.  &  Lef.  243. — R. 

352 


LECT.  VIII.]  MARRIED    WOMEN.  329 

during  the  coverture,  they  become  his  debt,  but  until 
that  is  done  they  remain  the  debt  of  the  wife ;  and  all 
the  cases  agree  that  in  the  event  of  his  death,  they  would 
survive  to  her."  *The  Court,  therefore,  held  ^.^^^^ 
that  the  husband  alone  could  not  be  petition-  •-  -• 
ing  creditor  upon  the  bankruptcy  of  a  debtor  of  his 
wife,  who  became  her  debtor  before  her  marriage  (q). 
And  the  Court  of  Exchequer,  upon  the  same  ground  of 
survivorship  in  the  wife,  decided  that  if  the  husband 
became  bankrupt,  his  assignees  could  not  sue  in  their 
own  names  alone  upon  a  promissory  note  given  to  the 
wife  before  marriage  (r)} 

During  the  marriage  the  husband  might,  as  I  have 
said,  sue  or  be  sued  upon  his  wife's  contracts,  made 
while  she  was  a  single  woman ;  but  if  he  sued  he  must 
join  her  as  a  co-plaintiff;  and  if  he  were  sued,  she  must 
be  joined  as  a  co-defendant  (s).^  There  is  one  case,  in- 
deed, in  which  the  husband  may  sue  upon  a  contract 
made  with  her  while  single,  without  joining  her  as  a 
co-plaintiff.  This  is  where  a  bill  of  exchange  or  promis- 
sory note  has  been  given  to  her;  in  which  case  his 
suing  upon  it  in  his  own  name  is  an  election  to  take  it 
to  himself  and  a  dissent  to  his  wife's  having  any  inter- 
est in  it,  an  election  which,  as  will  be  seen  hereafter,  a 
husband  has,  at  Common  Law,  with  respect  to  his  wife's 
choses  in  action,  and  which  the  peculiar  nature  of  a 

{q)  Riimsey  v.  George,  supra. 

(r)  Sherrington  v.  Yates,  12  M.  &  W.  855 ;  Dingley  v.  Robinson,  26  L.  J. 
(Ex.)  00. 

(s)  Rnmsey  v.  George,  1  M.  &  Sel.  180;  Milner  v.  mines,  3  T.  R.  627; 
Pittara  V.  Foster,  1  B.  &  C.  (8  E.  C.  L.  R.)  248. 


1  Shay  V.  Sessamen,  10  Pa .  St.  432;  Eshelman  v.  Shuman,  13  Pa.  St. 
563.— R. 

'  And  even  this  although  the  husband  make  a  subsequent  promise ;  unless, 
of  course,  such  promise  be  based  upon  a  new  consideration  of  benefit  to  himself 
or  inconvenience  to  the  creditor :  Waul  v.  Kirkman,  13  Sm.  &  M.  599. — B. 

23  353 


330  PARTIES   TO   CONTRACTS.  [lECT.  VIII. 

promissory  note  enables  him  to  make,  by  merely  suing 

r*QQi-i  ^^  ^^'  ^^^  ^^^  ^^^^  could  not,  '''after  marriage, 
L  J  endorse  the  note,  and  it  would  be  nugatory  for 
the  husband  to  endorse  to  himself.  But  he  may,  if  he 
pleases,  leave  it  as  it  is,  and  then  the  remedy  on  it  sur- 
vives to  the  wife  (t)} 

Such,  then,  is  briefly  the  Common  Law  on  the  sub- 
ject of  the  wife's  contracts  made  before  marriage.  We 
have  now  to  consider  the  alterations  made  by  the  legis- 
lature. The  first  Act  affecting  the  present  topic  is  the 
"Married  Women's  Property  Act,  1870"  (33  &  34 
Vict.,  c.  93),  by  sect.  12  of  which  "a  husband  shall  not, 
by  reason  of  any  marriage  which  shall  take  place  after 
this  Act  has  come  into  operation,  be  liable  for  the  debts 
of  his  wife  contracted  before  marriage,  but  the  wife 
shall  be  liable  to  be  sued  for,  and  any  property  belong- 
ing to  her  for  her  separate  use  shall  be  liable  to  satisfy, 
such  debts  as  if  she  had  continued  unmarried."  By 
sect.  15  this  Act  came  into  operation  at  the  time  of 
the  passing  of  the  Act,  viz.,  the  9th  of  August,  1870 ; 
and  inasmuch  as  "  an  Act  which  comes  into  ojDeration 
on  a  given  day  becomes  a  law  as  soon  as  the  day  com- 
mences" {u),  the  marriages  affected  by  sect.  12  are  tliose 

(0  Gaters  v.  Madeley,  6  M.  &  W.  423.  Sec  M'Neilage  v.  Holloway,  1  B.  & 
Aid.  218 ;  Howard  v.  Cakes,  3  Ex.  136. 

(m)  See  per  Lush,  J.,  in  Tomlinson  v.  Bullock,  4  Q.  B.  D.  230,  232;  48  L. 
J.  (M.  C.)  95,  96.  See  also  Wilberforce  on  Statute-s,  Ch.  IV.,  "  The  Operation 
of  Statutes,"  p.  154. 

^  But  this  decision  of  Lord  Ellenborough  has  been  overruled,  and  it  is  now 
settled  that  a  promissory  note  is,  in  the  ordinary  course  of  tilings,  a  chose  in 
action,  and  there  is  nothing  to  take  it  out  of  the  common  rule  that  choses  in 
uctJon  survive  to  the  Avife  after  the  death  of  her  husband,  unless  he  lias' re- 
duced them  into  pos.session ;  and  it  is  believed  to  be  a  rule  without  exception 
that  a  luisband  can  not  sue  alone  to  recover  any  chose  in  action  belonging  to 
the  wife  before  marriage :  Fenner  v.  Plaskett,  Moore,  422 ;  Riclnirds  v.  Rich- 
ards, 2  B.  &  Ad.  (22  E.  C.  L.  R.)  447  ;  Gaters  v.  Madeley,  6  M.  &  W.  427; 
Sherrington  v.  Yates,  12  lb.  855;  Hart  v.  Stepliens,  6  Q.  B.  (51  E.  C.  L  R.) 
937  ;  Morse  v.  Earl,  13  "VVend.  271 ;  Clapp  v.  Stoughton,  10  Pick.  470;  John- 
8ton  I'.  Pasteur,  C.  &  N.  464. — r. 

354 


I 


LECT.  VIII.]  MARRIED    WOMEN.  831 

which  took  place  on  or  after  tlie  9tli  of  August,  1870, 
and  up  to  the  time  when  the  *Act  amending  p^Qooi 
tliis  Act,  and  which  will  be  noticed  immediately, 
came  into  force.  The  effect  of  this  enactment  is  to  re- 
lieve the  husband,  where  the  marriage  took  place  dur- 
ing the  above  period,  from  all  personal  liability  in  re- 
spect of  his  wife's  contracts  made  before  the  marriage. 
The  Avife,  however,  is  made  liable  in  respect  of  her 
separate  estate,  and  execution  can  issue  against  her  as 
if  she  were  sole,  and  the  husband  need  not  be  joined 
with  her  in  the  action  {x).  Under  sect.  11  a  married 
woman  may  now  maintain  an  action  in  her  own  name 
for  the  recovery  of  any  property  belonging  to  her  be- 
fore marriage,  and  which  her  husband  shall,  by  writing 
under  his  hand,  have  agreed  with  her  shall  belong  to 
lier  after  marriage  as  her  separate  projoerty.  But  this 
Act  was  amended  by  the  "  Married  Women's  Property 
Act  (1870)  Amendment  Act,  1874"  (37  &  38  Yict.,  c. 
50),  which  was  passed  on  the  30th  of  July,  1874;  the 
first  section  of  which  enacts  that  "so  much  of  the 
Married  Women's  Property  Act,  1870,  as  enacts  that  a 
husband  shall  not  be  liable  for  the  debts  of  his  wife 
contracted  before  marriage  is  repealed,  so  far  as  respects 
marriages  which  shall  take  place  after  the  passing  of 
this  Act,  and  a  husband  and  wife  married  after  the 
passing  of  this  Act  may  be  jointly  sued  for  any  such 
debt"  (y).  The  2nd  ^section  of  the  Amend-  r^qoo-i 
ment  Act,  however,  limits  the  husband's  liabil- 
ity for  such  debts  to  the  extent  only  of  his  interest  in 
his  wife's  property,  as  defined  in  sect.  5  of  the  same 
Act  (z).     The  last-mentioned  section  also  provides  that 

(.r)  Williams  v.  Mercier,  9  Q.  B.  D.  (C.  A.)  337;  51  L.  J.  (Q.  B.)  594. 

(y)  Tlie  husband  can  only  be  sued  jointly  with  his  wife,  and  is  not  liable  in 
a  separate  action  after  her  death.  Bell  v.  Stocker,  10  Q.  B.  D.  129,  52  L.  J. 
(Q.  B.)  49. 

(2)  Where,  after  the  passing  of  the  Amendment  Act  of  1874,  an  English- 

355 


333  PAETIES   TO    COXTEACTS.  [lECT.  VIII. 

when  the  husband  after  marriage  pays  any  debt  of  his 
"wife,  or  has  a  judgment  bond  fide  recovered  against 
him  in  any  such  action  as  is  in  that  Act  mentioned,  then 
to  the  extent  of  such  payment  or  judgment  the  husband 
shall  not  in  any  subsequent  action  {a)  be  liable.  In 
the  case,  therefore,  of  marriages  which  have  taken 
place  on  or  after  (b)  the  30th  of  July,  1874,  up  to  the 
time  when  the  Married  Women's  Property  Act,  1882, 
came  into  force,  the  husband  is  liable  for  the  wife's 
ante-nuptial  contracts  to  the  extent  of  the  property 
that  he  has  got  through  her. 

r:^ooA-\  *We  now  come  to  the  last  and  most  import- 
ant of  all  the  Acts  upon  this  subject.  I  mean 
the  Married  Women's  Property  Act,  1882  (45  &  46 
Yict.,  c.  75),  sect.  25  of  which  fixes  the  date  of  the 
commencement  of  the  statute  on  [c]  the  ]st  day  of 
January,  1883.  This  Act,  by  its  22nd  section,  repeals 
the  Married  Women's  Property  Act,  1870,  and  the 
Amendment  Act  of  1874,  "  provided  that  such  repeal 
shall  not  aifect  any  act  done  or  right  acquired  while 
either  of  such  Acts  was  in  force,  or  any  right  or  lia- 
bility of  any  husband  or  wife  married  before  the  com- 
mencement of  this  Act,  to  sue  or  be  sued  under  the 
provisions  of  the  said  repealed  Acts  or  either  of  them 
for  or  in  respect  of  any  debt,  contract,  wrong,  or  other 

man  married  in  England  a  woman  who  had  contracted  debts  while  a  feme  sole 
in  Jersey,  it  was  held  that,  although  by  the  law  of  Jersey  a  husband  is  liable 
for  the  ante-nuptial  debts  of  his  wife  and  that  Act  did  not  apply  to  Jersey, 
yet  that  in  an  action  brought  in  England  against  the  husband  and  wife  for 
those  debts,  the  husband  was  liable  to  the  extent  only  of  the  assets  derived 
from  his  wife  and  specified  in  sect.  5  of  the  Act.  De  Greuchy  v.  Wills,  4  C. 
P.  D.  362 ;  48  L.  J.  (Q.  B.,  etc.,)  726. 

(a)  The  words  "any  subsequent  action"  mean  any  action  commenced  sub- 
sequently to  the  time  of  bringing  the  action  in  which  judgment  has  been  re- 
covered, and  not  merely  any  action  commenced  subsequently  to  the  recovery 
of  the  judgment :     Fear  v.  Castle,  8  Q.  B.  D.  380,  51  lu  J.  (Q.  B.)  279. 

(b)  See  ante,  p.  *331. 

(c)  See  ante,  p.  *331. 

356 


LECT.  VIII.]  MARRIED    WOMEN.  334 

matter  or  thing  whatsoever  for  or  in  respect  of  which 
any  such  right  or  liability  shall  have  accrued  to  or 
ajrainst  such  Jiusband  or  wife  before  the  commencement 
of  this  Act."  This,  Act,  therefore,  only  affects  a  wife's 
ante-nuptial  debts  and  liabilities  where  the  marriage  has 
taken  place  on  or  after  the  1st  of  January,  1883.  With 
regard  to  such  cases,  sect.  13  enacts  as  follow^s : — 

"  A  woman  after  her  marriage  shall  continue  to  be 
liable  in  respect  and  to  the  extent  of  her  separate  prop- 
erty for  all  debts  contracted,  and  all  contracts  entered 
into  or  wrongs  committed  by  her  before  her  marriage, 
including  any  sums  for  which  she  ma}'"  be  liable  as  a 
contributory,  either  before  '^or  after  she  has  r^oo^n 
been  placed  on  the  list  of  contributories,  un- 
der and  by  virtue  of  the  Acts  relating  to  joint-stock 
companies  ;  and  she  may  be  sued  for  any  such  debt  and 
for  any  liability  in  damages  or  otherwise  under  any 
such  contract,  or  in  respect  of  any  such' wrong;  and 
all  sums  recovered  against  her  in  respect  thereof,  or  for 
any  costs  relating  thereto,  shall  be  payable  out  of  her 
se23arate  property ;  and,  as  between  her  and  her  hus- 
band, unless  there  be  any  contract  between  them  to  the 
contrary,  her  separate  property  shall  be  deemed  to  be 
primarily  liable  for  all  such  debts,  contracts,  or  wrongs, 
and  for  all  damages  or  costs  recovered  in  respect 
thereof:  Provided  always,  that  nothing  in  this  Act  shall 
operate  to  increase  or  diminish  the  liability  of  any 
woman  married  before  the  commencement  of  this  Act 
for  any  such  debt,  contract,  or  wrong,  as  aforesaid, 
except  as  to  any  separate  property  to  which  she  may 
become  entitled  by  virtue  of  this  Act,  and  to  which  she 
would  not  have  been  entitled  for  her  separate  use  under 
the  Acts  here])y  repealed  or  otherwise,  if  this  Act  had 
not  passed." 

By  sect.  14,  "  a  husband  shall  be  liable  for  the  debts 

357 


335  PARTIES   TO   CONTEACTS.  [lECT.  VIII. 

of  his  wife  contracted,  and  for  all  contracts  entered  into 
and  wrongs  committed  by  her,  before  marringe,  includ- 
ing any  liabilities  to  which  she  may  be  so  subject  under 
the  Acts  relating  to  joint-stock  companies  as  aforesaid, 
to  the  extent  of  all  property  whatsoever  belonging  to 
his  wife  which  *lie  shall  have  acquired  or  be- 
L  -I  come  entitled  to  from  or  through  his  wife,  after 
deducting  therefrom  any  payments  made  by  him,  and 
any  suras  for  which  judgment  may  have  been  bond  fide 
recovered  against  him  in  any  proceeding  at  law,  in  re- 
spect of  any  such  debts,  contracts,  or  wrongs,  for  or  in 
respect  of  which  his  wife  was  liable  before  her  marriage 
as  aforesaid ;  but  he  shall  not  be  liable  for  the  same  any 
further  or  otherwise ;  and  any  Court  in  which  a  hus- 
band shall  be  sued  for  any  such  debt  shall  have  power 
to  direct  any  inquiry  or  proceedings  which  it  may  think 
proper  for  the  purpose  of  ascertaining  the  nature, 
amount,  or  value  of  such  property :  Provided  always, 
that  nothing  in  this  Act  contained  shall  operate  to 
increase  or  diminish  the  liability  of  any  husband  mar- 
ried before  the  commencement  of  this  Act  for  or  in  re- 
spect of  any  such  debt  or  other  liability  of  his  wife 
as  aforesaid." 

Sect.  15,  regulating  the  cases  where  both  husband 
and  wife  may  be  sued  for  such  causes  of  action,  enacts 
that  "  a  husband  and  wife  may  be  jointly  sued  in  respect 
of  any  such  debt  or  other  liability  (whether  by  contract 
or  for  any  wrong)  contracted  or  incurred  by  the  wife 
before  marriage  as  aforesaid,  if  the  plaintiff  in  the  action 
shall  seek  to  establish  his  claim,  either  wholly  or  in 
part,  against  both  of  them ;  and  if  in  any  such  action, 
or  in  any  action  brought  in  respect  of  any  such  debt  or 
liabilitv  against  the  hupband  alone,  it  is  *not 

*^  J  found  that  the  husband  is  liable  in  respect  of 
any  property  of  the  wife  so  acquired  by  him  or  to  which 
358 


LECT.  VIII.]  MAERIED   WOMEN.  337 

he  shall  have  become  so  entitled  as  aforesaid,  he  shall 
have  judgment  for  his  costs  of  defence,  whatever  may 
be  the  result  of  the  action  against  the  wife  if  jointly 
sued  with  him  ;  and  in  any  such  action  against  husband 
and  wife  jointly,  if  it  appears  that  the  husband  is  liable 
for  the  debt  or  damages  recovered,  or  any  part  thereof, 
the  judgment  to  the  extent  of  the  amount  for  which  the 
husband  is  liable  shall  be  a  joint  judgment  against  the 
husband  personally  and  against  the  wife  as  to  her  sepa- 
rate property ;  and  as  to  the  residue,  if  any,  of  such 
debt  and  damages,  the  judgment  shall  be  a  separate 
judgment  against  the  wife  as  to  her  separate  property 
only." 

The  general  result,  therefore,  of  the  Act  is  to  limit 
the  husband's  liability  on  the  wife's  contracts  made 
before  the  marriage  to  the  property  which  he  has 
acquired  through  his  wife.  And  unless  he  has  so 
acquired  property  she  is  made  solely  responsible,  but 
her  liability  is  limited  to  the  amount  of  her  separate 
estate.  But  the  Act  seems  to  diminish  considerably 
the  probability  of  the  husband  acquiring  any  property 
through  his  wife ;  for  sect.  2  is  as  follows  : — 

"  Every  woman  who  marries  after  the  commencement 
of  this  Act  shall  be  entitled  to  have  and  to  hold  as  her 
separate  property  and  to  dispose  of  in  ^manner 
aforesaid  (d)  all  real  and  personal  property  (e)  L'^'^^^J 
which  shall  belong  to  her  at  the  time  of  marriage,  or 
shall  be  required  by  or  devolve  upon  her  after  mar- 
riage, including  any  wages,  earnings  (/),  money,  and 
property  gained  or  acquired  by  her  in  any  employment, 

(d)  I.  e.,  to  dispose  of  it  by  will  or  otherwise  in  the  same  manner  as  if  she 
were  3,  feme  sole.     See  s.  1,  sub-s.  (1). 

(e)  By  6.  24,  "the  word  'property'  in  this  Act  includes  a  thinsj  in  action." 
(/)  See,  as  to  the  words  "  wages,  earnings,"  including  the  stock  in  trade  and 

capital  necp,ssary  for  the  making  those  wages  and  earnings,  Ashworth  v.  Out- 
ram,  5  Ch.  Div.  923;  46  L.  J.  (Ch.)  687. 

359 


838  PAETIES   TO   CONTRACTS.  [lECT.  VUI. 

trade,  or  occupation,  in  which  she  is  engaged,  or  which 
she  carries  on  separately  from  her  husband  (g),  or 
by  the  exercise  of  any  literary,  artistic,  or  scientific 
skill." 

This  section,  therefore,  not  only  re-enacts  sect.  1  of 
the  Act  of  1870,  but  entirely  alters  the  old  law  as  to 
the  effect  of  marriage  in  transferring  the  wife's  property 
to  the  husband,  and  unless  there  is  a  settlement,  or  she 
makes  a  special  gift  to  him,  he  takes  nothing. 

It  appears,  therefore,  from  the  above  that  the  ante- 
nuptial contracts  of  a  wife  may  be  governed  by  one  of 
four  states  or  conditions  of  the  law,  according  to  the 
date  of  the  marriage. 

I.  If  the  marriage  took  place  before  the  9th  of 
August,  1870,  then  the  Common  Law  still  governs 
such  contracts. 

P^ooq-|       *II«  If  tlie  marriage  took  place  on  or  after 

'-        ^  the  9th  of  August,  1870,  and  before  the  oOth 

of  July,  1874,  then  such  contracts  are  regulated  by  the 

Common  Law  as  modified  by  the  "  Married  Women's 

Property  Act,  1870." 

III.  If  the  marriage  took  place  on  or  after  the  30th 
of  July,  1874,  and  before  the  1st  of  January,  1883, 
then  such  contracts  are  regulated  by  the  Common  Law 
as  modified  by  the  "  Married  Women's  Property  Act, 
1870,"  amended  by  the  "  Married  Women's  Property 
Act  (1870)  Amendment  Act,  1874." 

IV.  If  the  marriage  took  place  on  or  after  the  1st  of 
January,  1883,  then  such  contracts  are  regulated  by  the 
"Married  Women's  Property  Act,  1882,"  and  so 
much  of  the  Common  Law  as  that  Act  leaves  in 
force. 

Next  as  to  contracts  entered  into  by  a  married  woman 

{g)  As  to  what  amounts  to  carrying  on  a  trade  separately  from  the  husband, 
see  Lovell  v.  Newton,  4  C.  P.  D.  ". 
360 


LECT.  VIII.]  MAERIED    WOMEN.  339 

subsequently  to  Ler  marriage;  and  here,  too,  the  law 
has  been  so  much  altered  by  the  Married  Women's 
Property  Acts  of  1870  and  1882  that  it  will  be  neces- 
sary to  state  the  law  as  it  stood  before  those  Acts,  and 
then  tlie  successive  alterations  made  by  them  in  that 
law. 

Now,  it  is  the  general  rule  of  the  Common  Law,  that 
a  married  woman  cannot  bind  herself  by  any  contract 
made  during  the  coverture ;  not,  as  in  the  case  of  an 
infant,  from  any  presumption  of  incapacity,  but  because 
she  has  no  separate  existence,  her  husband  and  she 
being,  in  contemplation  of  *law,  but  one  j^erson.  r:i:o4Q-i 
The  great  case  on  this  subject  is  Marshall  v. 
Kutton  (A),  which  was  decided  by  all  the  Judges 
in  England,  except  Mr.  J.  Buller,  and  is  one  of  the 
last,  perhaps  the  very  last,  instance  of  the  practice 
which  was  so  common  in  the  early  ages  of  the  law,  ac- 
cording to  which,  anyone  of  the  superior  Courts  before 
which  a  very  important  point  arose,  requested  the  as- 
sistance of  the  Judges  of  the  other  two,  to  hear  it  dis- 
cussed, and  to  assist  in  deciding  it.  In  this  case  it  was 
held  that  she  cannot  bind  herself  by  any  conti'act  made 
during  her  coverture,  although  she  was  separated  from 
her  husband,  and  had  a  separate  maintenance  :  nor  can 
she  where  living  in  open  adultery,  although  the  contract 
was  for  goods  sold  to  her,  and  the  vendor  knew  not  of 
her  marriage  {i).  Her  husband  being  a  foreigner,  re- 
siding abroad,  is  not  a  sufficient  circumstance  to  make 
her  liable  {k)  ;  nor  will  his  having  been  a  bankrupt 
who  absconded  from  his  creditors,  and  was  residing 
abroad  when  the  contract  was  made,  render  her  liable 
to  be  sued  upon  it  (/). 

(A)  8  T.  R.  545  ;  Lewis  v.  Lee,  3  B.  &  C.  (10  E.  C.  L.  R.)  291. 
{i)  Meyer  t'.  Haworth,  8  A.  &  E  (35  E.  C.  L.  R.)  467. 
{k)  Stretton  v.  Busnach,  1  Ring.  N,  C.  (27  E.  C.  L.  R.)  139. 
(/)  Williamson  v.  Dawes,  9  Bing.  (23  E.  C.  L.  R.)  292. 

361 


840  PAKTIES   TO   CONTEACTS.  [lECT.  VIII. 

In  a  word,  the  person  who  contracts  with  a  married 
woman,  as  far  as  any  right  against  her  personally  at 
Common  Law  is  concerned,  relies  upon  her  bare  word  ; 

^'^411    ^^^  ^^^^  ^^  ^^^  recognised  there  *as  a  person 
capable   of   binding   herself  by  any    contract 
whatever,^  save  only  in  a  few  cases,  which  I  will  now 
specify. 

The  first  of  these  is  where  her  husband  is  civilly 
dead  :  for  instance,  where  he  is  under  sentence  of  trans- 
portation, or  penal  servitude.  In  such  a  case,  to  pre- 
vent her  from  contracting,  would  be  to  deprive  her  too 
of  all  civil  rights,  since  the  husband,  being  civilly  dead, 
is  no  longer  capable  of  contracting  for  her  (m).  This 
is  a  very  old  doctrine,  having  been  first  established  in 
the  2nd  Hen.  IV.,  in  the  Year  Book  of  which  year  we 
find  that  Belknap,  the  Lord  High  Treasurer,  was 
banished  to  Gascony  till  he  should  obtain  the  King's 
favour,  and  his  wife.  Lady  Belknap,  brought  an  action 
in  the  Common  Pleas,  which  seems  to  have  been  the 

(m)  Ex  parte  Franks,  7  Bing.  (20  E.  C.  L.  K.)  762;  Marsh  v.  Hutchinson,  2 
B.  &  P.  226. 


'  WJiile  it  is  correct  that  a  married  woman  cannot,  by  a  contract  made  dur- 
ing coverture,  bind  herself,  yet  the  husband  may  be  bound  by  contracts  made 
by  }ier,  in  cases  where  it  appears  that  she  acted  as  his  agent,  or  under  an 
authority  from  him,  express  or  implied. 

It  is  well  settled  tliat  a  married  woman  cannot  bind  herself  to  answer  in 
damages  by  reason  of  her  joining  with  her  liusband  in  covenants  in  a  deed 
conveying  her  estate ;  but  it  seems  not  to  be  exactly  determined  whether 
these  covenants  will  have  any  eftect  upon  her  by  way  of  estoppel,  such  an 
effect  having  been  recognised  in  some  cases:  Hill's  Lessee  v.  West,  8  Ohio, 
220  ;  Massie  v  Sebastian,  4  Bibb,  43(5 ;  Fowler  v.  Sliearer,  7  Mass.  21  ;  Nash  v. 
Spofford,  10  Mete.  192;  and  denied  in  others:  Jackson  v.  Vanderheyden,  17 
Johns.  167;  Carpenter  v.  Schermerhorn,  2  Barb.  Ch.314;  Wadleigh  v.  Glines, 
6  N.  H.  18;  Den  v.  Demarest,  21  N.  J.  541.— R. 

The  deed  of  a  married  woman  is  void  :  Matthews  v.  Puffer,  19  N.  H.  448; 
Concord  v.  Bellis,  10  Cush.  276;  Chandler  v.  McKinney,  6  Mich.  217  ;  Glyde 
V.  Keister,  1  Grant,  4G5  ;  32  Pa.  St.  85.  A  woman  after  lier  coverture  ceases 
cannot  make  a  valid  legal  promise  to  pay  a  debt  which  she  incurred  during 
coverture  :  Goulding  v.  Davidson,  28  Barb.  438. — S. 

362 


LECT.  VIII.]  MAEKIED    WOMEN.  841 

first  instance  of  such  a  proceeding  by  a  married  woman  ; 
for  it  struck  the  lawyers  of  those  days  with  so  much 
surprise  that  they  commemorated  it  by  a  Latin  distich, 
which  Lord  Coke  has  thought  it  worth  his  while  to 
preserve  in  the  1st  Institute.  It  is  in  the  old  monkish 
style,  and  is  not  only  in  hexameter  measure,  but  in 
rhyme  also  ;  the  words  are 

"  Ecce  modo  mirum,  quod  foemina  fert  breve  Kegis, 
Non  nominando  virum  conjunctum  robore  legis." 

Another  case  is  where  the  husband  is  a  foreigner 
belonging  to  a  country   at   war   with   Great   Britain. 
*In  such  case,  as  he   cannot  lawfully   contract    r::.:c>49-| 
or  sue  in  England,  it   seems   to   be   admitted 
that  his  wife  may  do  so  as  if  she  were  unmarried  {71) } 

(n)  Barden  v.  Keverberg,  2  M.  »&;  W.  61 ;  see  De  Wahl  v.  Braune,  25  L.  J. 
(Ex.)  343  ;  1  H.  &  N.  178. 


^  Derry  v.  Duchess  of  Mazarine,  1  Kayin.  147.  This  exception,  however,  to 
the  general  rule  which  denies  the  efficacy  of  the  contracts  of  married  women, 
is  not  confined  merely  to  the  case  of  the  wife  of  an  alien  enemy,  nor,  indeed,  as 
it  would  seem  by  the  late  authorities,  at  least  in  this  country,  to  the  case  of  an 
alien  at  all.  Some  distinctions  were  at  one  time  taken,  which  have  not 
latterly  been  recognised.  Thus  it  has  been  held  that  where  the  husband  was 
a  foreigner,  and  had  never  been  in  the  country,  the  wife  could  sue  and  be 
sued  on  her  contracts :  Walford  v.  Duchess  of  Pienne,  2  Esp.  554  ;  De  Gaillon 
V.  L'Aigle,  1  B.  &  P.  357 ;  Gregory  v.  Paul,  15  Mass.  30 ;  Eobinson  v.  Key- 
nolds,  1  Aik.  174  ;  but  not  where  the  husband  had  ever  resided  in  the  country : 
Kay  V.  Duchess  of  Pienne,  3  Campb.  123 ;  or  was  a  natural  born  subject, 
though  he  might  have  deserted  her  and  resided  abroad  for  years :  De  Gailloa 
V.  L'Aigle,  Boggett  v.  Frier,  11  East,  301  ;  Franks  v.  Duchess  of  Pienne,  2  Esp. 
587.  The  distinction  thus  taken  between  an  alien  and  a  subject  seems  to  have 
proceeded  on  the  supposition  that  in  the  case  of  the  latter,  there  might  be  an 
animus  revertendi,  but  the  later  cases  have  judiciously  neglected  such  a  dis- 
tinction, and  it  is  now  well  settled,  at  least  in  this  country,  that  where  the 
■wife  has  been  left  by  her  husband — has  traded  as  a  feme  sole — and  has  ob- 
tained credit  as  such,  she  is  liable  for  her  debts,  and  on  the  other  hand  may 
acquire  property  of  her  own  :  Rhea  v.  Ehenner,  1  Pet.  105;  Bean  v.  Morgan, 
4  M'Cord,  148;  Starret  v.  "Wynn,  17  S.  &  R.  133;  Gregory  v.  Pierce,  4  Mete. 
478  ;  Arthur  v.  Broadnax,  3  Ala.  557  ;  James  v.  Stewart,  9  lb.  855  ;  and  it 
perhaps  would  not  be  inconsistent  with  reason  to  lay  down  as  a  rule,  that 
where  the  wife  has  obtained  credit  as  a  feme  sole,  and  her  husband  i"   absent 

363 


342  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

By  the  custom  of  the  city  of  London,  a  married 
woman  is  allowed  to  be  a  trader  in  her  individual  capa- 
city, and  may  sue  alone  in  the  city  courts  on  contract?? 
made  b}^  her  in  the  course  of  such  trade;  but  it  Avould 
seem  that,  even  in  this  case,  if  she  had  brouglit  au 
action  in  the  Courts  at  Westminster,  it  would  have  been 
necessary  to  make  her  husband  a  party  to  it.^  This 
subject  is  learnedly  discussed  in  Beard  v.  Webb  (o). 

Even  if  a  married  woman  has  been  divorced  a  mensd 
el  ihoro,  which  before  the  stat.  20  &  21  Vict.,  c.  85,  s.  7 
legalised  the  separation  of  the  parties,  but  left  the  mar- 
riage bond  uusevered,  the  same  rule  a])plied.  Now, 
however,  instead  of  a  divorce  a  tnensd  et  thoro,  a  decree 
for  a  judicial  separation  is  pronounced  in  those  cases  in. 
"which  the  limited  divorce  before  mentioned  was  obtain- 
able, and  has  the  same  consequences  {p)  ;  but  in  ad- 
Co)  2  B.  <S:  P.  93. 

(p)  By  41  Vict.,  c.  19,  s.  4,  if  a  husband  shall  be  convicted  summarily  or 
otherwise  of  an  aggravated  assault  as  there  defined,  upon  his  wife,  tlie  Court 
or  magistrate  before  wliom  he  sliall  be  so  convicted  may,  if  satisfied  that  the 
future  safety  of  the  wife  is  in  peril,  order  that  the  wife  shall  be  no  longer 
bound  to  cohabit  with  lier  liusband,  and  such  order  shall  have  the  force  and 
efiect  in  all  respects  of  a  decree  of  judicial  separation,  on  the  ground  of 
cruelty. 

at  the  time  of  the  contract,  and  until  and  at  the  time  of  the  bringing  of  the 
suit,  a  recovery  may  be  had  against  her.  It  is  doubtful,  however,  wliether 
the  English  cases  to  any  extent  abandoned  the  distinctions  formerly  taken  by 
them,  as  in  Barden  v.  Keverberg,  cited  by  the  lecturer,  Mr.  Baron  Parke  said 
that  a  party  seeking  to  make  a  wife  liable,  "  must  make  out  that  tlie  husband 
was  an  alien,  that  he  was  resident  abroad,  and  nes'er  in  tliis  country,  and  that 
the  defendant  represented  herself  as  a  feme  sole,  or  that  the  plaintiff  dealt 
with  her  believing  her  to  be  so." — R. 

'  In  Pennsylvania,  South  Carolina,  and  perhaps  other  States,  the  custom  of 
London  as  to  feme  sole  traders  has  been  imitated  by  statutory  enactments : 
see  Burk  v.  Winkle,  2  S.  &  R.  189;  Jacobs  v.  Featherstone,  6  W.  &  S.  346; 
Hobart  v.  Lemon,  3  Rich.  131  ;  Blythwood  v.  Everingham,  lb.  285. — R. 

Where  the  wife  has  been  a  long  time  absolutely  deserted  by  her  husband, 
and  left  wholly  to  her  own  means  of  support,  she  is  free  to  act  as  a  feme  sole : 
Smith  V.  Silence,  4  Iowa,  321.  Living  apart  from  the  husband  does  not  affect 
the  disabilities  of  a  feme  covert :  High  v.  Worley,  33  Ala.  196  ;  and  see  Pres- 
cott  I,.  Fisher,  22  111.  390 ;  Ayer  v.  Warren,  47  Me.  217.— S. 

364 


LECT.  VIII.]  MARRIED    WOMEN.  343 

dition  *to  these  the  wife  is,  while  tlie  separation  ^^040-1 
continues,  to  be  considered  a  feme  sole,  and 
may  contract  as  such.  Upon  such  contracts  her  hus- 
band is  not  liable ;  unless  upon  the  separation  alimony- 
shall  have  been  decreed  to  her,  in  which  case,  if  it  be 
not  duly  paid,  he  remains  liable  for  necessaries  supj)lied 
for  her  use  (s.  2(3).  Moreover  a  wife  deserted  by  her 
husband  may  obtain  from  the  Court  for  Divorce  and 
Matrimonial  Causes,  in  the  Metropolitan  District  from  a 
Police  Magistrate,  or  in  the  country  from  two  Justices,  an 
order  to  protect  any  property  which,  after  her  desertion, 
she  may  acquire  by  her  own  industry,  or  may  become 
possessed  of;  and  she  is  during  the  continuance  of  the 
order,  and  during  her  desertion,  in  the  like  position  in 
regard  to  property  and  contracts,  suing  and  being  sued, 
as  if  she  had  obtained  a  decree  of  judicial  separa- 
tion (s.  21). 

Now,  so  far  with  reo:ard  to  a  married  w^oman's  right 
to  bind  herself  by  contracts.  But,  with  regard  to  her 
power  of  taking  advantage  of  contracts  made  by  other 
persons  with  her,  the  rule  is  somewhat  different ;  for  it 
has  been  decided  that,  if  a  contract  be  made  with  the 
wife  on  good  consideration,  during  the  marriage,  the 
husband  may,  if  he  please,  take  advantage  of  it,  and 
recover  in  an  action  on  it,  in  which  action  he  may  join 
his  wife  as  a  co-plaintiff.  And  if  he  die  without  taking 
any  such  step,  the  right  to  sue  upon  it  will  survive  to 

*the  wife  (o).     One  of  the  earliest  authorities    ^.„    ,_. 

.       .  .  r  3441 

on  this  subject  is  Brash  ford  v.  Buckingham  (r),    •-         -• 

where  the  wife  had  undertaken  to  cure  a  wound  for 
the  sum  of  ten  pounds  which  the  patient  was  ungrate- 
ful enough  not  to  pay  ;  and  after  she  and  her  husband 
had  recovered  judgment  in  an  action  of  debt,  a  writ  of 

[q]  So  after  divorce,  Wells  v.  Malbon,  31  L.  J.  (Ch.)  344. 
(r)  Cro.  Jac.  77,  confirmed  in  error,  lb.  205. 

365 


344  PARTIES    TO    CONTRACTS.  [lECT.  VIII. 

error  was  brought  in  the  Exchequer  Chamber  on  the 
ground  that  a  married  woman  could  not  sue.  But  the 
Court  said,  that,  being  grounded  on  a  promise  made  to 
the  wife,  upon  a  matter  arising  upon  her  skill,  and  on  a 
performance  to  be  made  to  the  wife,  she  is  the  cause  of 
the  action,  and  so  the  action  brought  in  both  their  names 
is  well  enough,  and  such  action  shall  survive  to  the  wife. 
Wherefore  the  judgment  was  affirmed.  On  the  same 
principle,  if  a  bond  be  made  payable  to  her,  she  and 
her  husband  may  sue  upon  it  {s)}  So  if  a  promissory 
note  be  made  payable  to  her.  "  Is  not  the  wife,"  said 
Lord  Ellenborough,  "  the  meritorious  cause  of  the  action? 
She  is  the  donee  of  the  note,  and  it  is  acquired  through 
her,  and  the  note  is  a  thing  which  of  itself  imports  a 
consideration "  (^).  There  is  a  very  curious  case  of 
Kichards  v.  "'''Ilichards  {a),  in  which  a  married 
L  -J  woman  took  a  note  from  her  own  husband  and 
two  other  persons.     And  it  was  held,  that,  though  no 

(s)  Day  t'.  Padrone,  2  M.  &  Sel.  396,  n.  (6).  See  Johnson  v.  Lucas,  22  L.  J. 
(Q.  B.)  174 ;  1  E.  &  B.  (72  E.  C.  L.  R.J  659 ;  Dalton  v.  Midland  Counties  Ry., 
22  L.  J.  (C.  P.)  177 ;  13  C.  B.  (76  E.  C.  L.  R.)  474. 

{I)  Philliskirk  V.  Pluckwell,  2  M.  &  Sel.  395. 

(tt)  2  B.  &  Ad.  (22  E.  C,  L.  R.)  447. 


^  [Note  by  Mr.  J.  C.  Symons.]  Upon  a  deed  inter  partes,  made  during  co- 
verture, the  effect  of  the  authorities  seems  to  be  tha.t,  primd  facde,  tlie  right  of 
action  on  the  covenant  belongs  to  the  wife,  and  would  survive  to  her  on  the 
death  of  the  husband,  without  his  having  reduced  it  into  possession,  by  dis- 
senting from  her  right  in  some  operative  way,  as  by  taking  a  new  security  so 
as  to  vest  the  interest  in  himself.  Therefore,  the  coverture  of  the  plaintiff"  in 
such  a  case  cannot  be  pleaded  in  bar,  and  in  an  action  brought  by  the  plaintiff, 
the  non-joinder  of  the  husband  can  be  pleaded  only  in  abatement :  Bendix  v. 
Wakeman,  12  M.  &  W.  97.i 


'  Coverture  may  be  pleaded  in  abatement  or  in  bar,  according  to  circum- 
stances ;  where  the  defence  goes  to  the  root  of  the  demand,  as,  for  instance,  in 
an  action  on  a  bond  given  by  the  wife,  it  may  be  pleaded  in  bar :  Steer  v.  Steer, 
14  S.  &  R.  379 ;  but  where  the  defence  is  merely  the  disability  of  the  wife  to 
sue  in  her  own  name,  it  must  be  pleaded  in  abatement :  Perry  v.  Boileau,  10 
S.  &  R.  208 ;  Lyman  v.  Albee,  7  Yt.  508.— s. 

366 


LE(  :.  VIII.]  MAREIED    WOMEN".  345 

one  30uld  have  sued  on  it  in  his  lifetime,  yet,  that,  after 
his  eath,  she  might  sue  the  two  surviving  makers ;  and 
that  decision  is  approved  of  in  Gaters  v.  Madeley  (x). 
In  t'lat  case  a  promissory  note  was  given  to  a  married 
woman  during  the  coverture.  She  survived  her  hus- 
band, and  having  afterwards  herself  died  before  the  note 
was  paid,  it  was  held  that  her  executor  was  entitled  to 
maintain  an  action  upon  it.  The  rule  was  very  clearly 
laid  down  in  the  judgment  of  Baron  Parke.  "This," 
said  his  Lordship,  "  is  an  action  on  a  promissory  note — 
an  instrument  on  which  no  one  can  sue  unless  he  was 
originally  party  to  it,  or  has  become  entitled  to  it  under 
one  who  was.  A  promissory  note  is  not  a  personal  chat- 
tel in  possession,  but  is  a  chose  in  action  of  a  peculiar 
nature.  It  has,  indeed,  been  made  by  statute  assignable 
and  transferable  according  to  the  custom  of  merchants, 
like  a  bill  of  exchange.  Still  it  is  a  chose  in  action, 
and  nothing  more.  AVhen  a  chose  in  action,  such  as  a 
bond  or  note,  is  given  to  a  feme  covert,  the  husband  may 
elect  to  let  his  wife  have  the  benefit  of  it ;  ^  or,  if  he 

(x)  6  M.  &  W.  423.     See  Bendix  v.  Wakeman,  12  M.  &  W.  97 ;  Guyard  v. 
Sutton,  3  C.  B.  (54  E.  C.  L.  R.)  153; 


'  There  is  a  familiar  class  of  cases  in  equity  in  which  the  husband  has  suf- 
fered the  wife,  after  marriage,  to  acquire  a  separate  property  of  her  own,  as 
where,  in  Slanning  v.  Style,  3  P.  Wms.  338,  a  husband  permitted  his  wife  to 
make  a  profit  of  all  tlie  butter,  eggs,  and  poultry,  beyond  what  was  used  in  the 
family,  and  borrowed  of  her  £100,  the  fruit  of  these  savings,  she  was  held 
entitled  to  come  in  as  a  creditor  upon  his  estate,  after  his  death  ;  so,  in  Fetti- 
place  V.  Gorges,  1  Ves.  Jr.  46;  Walter  v.  Hodge,  2  Swans.  103;  Eogers  v. 
Fales,  5  Pa.  St.  157. 

In  a  very  recent  case  in  the  Exchequer,  Messenger  v.  Clarke,  5  Exch.  388, 
a  wife  who  lived  apart  from  her  husband,  purchased  stock  in  her  maiden 
name,  out  of  the  allowance  made  to  lier  by  him,  and  having  sold  out  this 
stock,  and  given  the  proceeds  to  her  brother  as  a  gift,  the  husband  was  held 
entitled  to  recover  it  from  him  after  her  death,  the  Court  holding,  that  al- 
though her  allowance  was  not  subject  to  recall  by  her  husband,  yet  that  the 
stock  when  purchased,  became  his,  and  that  she  had  no  authority  to  dispose 
of  it  as  a  gift.     It  was  said,  however,  that  if  it  had  been  parted  with  for  a 

367 


345  PARTIES   TO   CONTRACTS.  [lECT.  VIII. 

thinks  proper,  he  may  take  it  himself:  and  if  *in 
'-  -'  this  case  the  husband  had  in  liis  lifetime 
brought  an  action  upon  this  note  in  his  own  name,  that 
would  have  amounted  to  an  election  to  take  it  himself, 
and  to  an  expression  of  dissent  on  his  part  to  his  wife's 
having  any  interest  in  it.  On  the  other  hand,  he  may, 
if  he  pleases,  leave  it  as  it  is;  and  in  that  case  the 
remedy  on  it  survives  to  the  wife :  ^  or  he  may  adopt 
another  course,  and  join  her  name  with  his  own  ;  and 
in  that  case,  if  he  should  die  after  judgment,  the  wife 
woukl  be  entitled  to  the  benefit  of  the  note,  as  the 
judgment  would  survive  to  her." 

Here,  you  see,  all  the  possible  cases  are  put,  and  the 
consequence  of  each  pointed  out,  which  makes  this  judg- 
ment a  very  useful  one  for  the  purpose  of  practical 
reference. 

Though  it  is  settled  law  that  a  promissory  note  given 
to  the  wife  during  coverture  is  a  chose  in  action,  and 
not  a  personal  chattel  vested  in  the  husband,  and  that 
upon  his  death  the  right  to  sue  on  it  survives  to  the 
widow  unless  the  husband  has  reduced  it  into  posses- 


valuable  consideration,  or  the  money  been  applied  in  payment  of  debt,  it 
would  have  been  otherwise.  It  is  well  settled  with  respect  to  the  husband's 
right  of  disposition  over  his  wife's  choses  in  action,  he  cannot  give  them  away  : 
Buinett  V.  Kinnaston,  2  Vern.  401 ;  Jewson  v.  Moulson,  2  Atk.  417;  Mitford 
V.  Mitford,  9  Ves.  Jr.  87  ;  Johnson  v.  Johnson,  1  J.  &  W.  456  ;  Hartman  v.  Dow- 
del,  1  Rawle,  279 ;  Parsons  v.  Parsons,  9  N.  H.  309 ;  whatever  may  be  his 
power  of  barring  her  right  of  survivorship  by  an  assignment  or  mortgage  for 
a  valuable  consideration,  or  an  application  of  them  in  discharge  of  a  debt. 
See  Ryland  v.  Smith,  1  Myl.  &  Cr.  53.— R. 

^  It  lias  however  been  held  in  Massachusetts,  that  a  note  given  or  endorsed 
to  a  wife  during  coverture,  is  to  be  considered  as  actually  reduced  into  pos- 
session, and  at  the  husband's  death  would  therefore  go  to  his  representative, 
to  the  exclusion  of  the  wife's  survivorship :  Shuttlesworth  v.  Noyes,  8  Mass. 
229  ;  Com.  v.  Marley,  12  Pick.  173.  He  may,  indeed,  in  such  cases  sue  alone, 
and  thus  exercise  his  powers  of  reducing  it  into  possession,  but  until  he  does 
so,  or  receives  the  money  without  suit,  it  would  seem  that  he  cannot  be  con- 
sidered as  having  at  all  interfered  with  it,  so  as  to  deprive  her  of  her  sur- 
vivorship.— R. 

368 


n- 

J 


LECT.  Viri.]  MARKIED    WOMEN.  346 

sion,  it  is  still  a  point  of  nicety  and  difficulty  to  deter- 
mine what  is  a  reducing  into  possession  by  the  hus- 
band, such  as  to  deprive  the  wife  of  her  subsequent 
remedy.  In  the  case  of  Hart  v.  Stephens  (y),  where 
the  administrator  of  a  deceased  widow  sued  on  a 
note  given  her  dum  sola  ;  the  Court  held  that  the  hus- 
band of  *the  deceased,  by  receiving  interest  on  pijo^y-i 
the  note  during  the  life  of  the  wife,  had  not 
reduced  it  into  possession ;  and  it  seems  to  have  been 
assumed  that  receiving  money  on  it,  or  bringing  an 
action  for  it,  are  alone  sufficient  reductions  into  posses- 
sion— a  doctrine  apparently  sanctioned  by  Lord  Ken- 
yon^  C.  J.,  in  Milner  v.  Milnes  {z),  and  by  Lord  Hard- 
wicke  in  Garforth  v.  Bradley  [a),  who  puts  it  on  the 
ground  of  dissent  to  the  interest  remaining  in  the  wife 
thereby  evidenced  on  the  part  of  the  husband.  In  the 
still  later  case  of  Scarpellini  v.  Atcheson  {b),  a  case 
which  presents  some  noticeable  features,  the  plaintiff 
was  a  widow,  and  the  payee  of  a  promissory  note  made 
to  her  during  coverture  by  the  defendant.  The  hus- 
band caused  the  wife,  as  the  plea  stated,  "  in  his  marital 
right,"  to  endorse  to  F.,  who  after  his  death  delivered 
it  to  the  wife,  who  then  brought  this  action  upon  it. 
The  court  embodied  in  the  judgment  the  doctrine  we 
have  just  stated,  and  held  that  the  facts  as  stated  did 
not  amount  to  a  reduction  into  possession  by  the  hus- 
band.^ Still  more  recently,  in  a  case  where  the  defend- 
er) 6  q.b.  (5 1  E.  C.  L.  R.)  937. 
(z)  3  T.  R.  627. 

(a)  2  Ves.  675 ;  Michelmore  v.  Mudge,  29  L.  J.  (Ch.)  609 ;  Ilamilton  ft 
Mills,  29  Beav.  193. 
(6)  7  Q.  B.  (53  E.  C.  L.  R.)  864. 


'  On  the  subject  of  reduction  to  possession  by  the  husband  of  the  wife's 
choses  in  action,  see  Poor  v.  Hazleton,  15  N.  H.  564;  Stoner  v.  The  Com.,  16 
Pa.  St.  387;  Barron  v.  Barron,  24  Vt.  375;  Abington  v.  Travis,  15  Mo. 
240.-S. 

24  369 


347  PARTIES   TO    CONTKACTS.  [lECT.  VIII. 

ant  received  money  from  a  third  person  to  be  appro- 
priated to  the  use  of  a  married  woman,  and  lie  wrote 
telling  her  he  held  the  money  at  her  disposal,  and  the 
husband  survived  the  wife,  and  died,  never  having  at 
|-jj.o^n-i  any  time  interfered  in  any  *way  as  to  the 
money  ;  it  was  held  that  the  wife's  representa- 
tive and  not  the  husband's  was  the  proper  party  to  sue 
for  the  money,  as  the  facts  showed  a  chose  in  action 
conferred  on  the  wife  with  which  the  husband  had  not 
interfered  during  coverture  (<?). 

Such  then  being  the  state  of  the  Common  Law,  quali- 
fied only  by  the  statute  in  cases  of  judicial  separation 
or  desertion,  we  now  come  to  the  effect  of  the  "  Married 
Women's  Property  Act,  1870"  (33  &  34  Vict.,  c.  93), 
on  contracts  entered  into  by  a  married  woman  subse- 
quently to  her  marriage.  By  sect.  1  of  that  Act,  the 
wages  and  earnings  (d)  of  any  married  woman  acquired 
or  gained  by  her  after  the  passing  of  tlie  Act  in  any 
employment,  occupation,  or  trade,  in  which  she  is 
engaged  or  which  she  carries  on  separately  (e)  from  her 
r*Q4qi  husband,  and  *also  any  money  or  property  so 
^  acquired  by  her  through  the  exercise  of  any 

literary,  artistic,  or  scientific  skill,  and  all  investments 
of  such  wages,  earnings,  money,  or  property,  shall 
be  deemed  and  taken  to  be  property,  held  and 
settled  to  her  separate  use,  independent  of  any  husband 

(c)  Fleet  V.  Perrins,  L.  R.  3  Q.  B.  536;  37  L.  J.  (Q.  B.)  233  ;  affirmed  iti 
Ex.  Ch ,  L.  R.  4  Q.  B.  500 ;  38  L.  J.  (Q.  B.)  257.  See  also  Jones  v.  Culh- 
bertson,  L.  R.  7  Q.  B.  218 ;  41  L.  J.  (Q.  E.)  145  ;  affirmed  in  Ex.  Ch.,  L.  R. 
8  Q.  B.  504 ;  42  L.  J.  (Q.  B.)  221  ;  Nicholson  v.  Drury  Buildings  Building 
Co.,  7  Ch.  Div.,  48;  47  L.  J.  (Ch.)  193;  Widgery  v.  Tepper,  5  Ch.  Div.  51(5, 
7  lb.  423;  46  L.  J.  (Ch.)  579,  47  lb.  550;  In  re  Barber,  Dardier  v.  Chapman, 
11  Ch.  Div.  442;  Parker  v.  Lechmere,  12  Ch.  Div.  256. 

{dj  See,  as  to  those  words  including  the  stock  in  trade  and  capital  neces,sary 
for  the  making  of  those  wages  and  earnings,  Ashworth  v.  Outram,  5  Ch.  Div. 
923  ;  4G  L.  J.  (Ch.)  687. 

(e)  As  to  what  amounts  to  carrying  on  a  trade  separately  from  the  hus- 
band, see  Lovell  v.  Newton,  4  C.  P.  D.  7. 

370 


LECT.  VIII.]  MARRIED    WOMEN.  349 

to  whom  she  may  be  married,  and  her  receipts  alone 
shall  be  a  good  diseliarge  for  such  wages,  earnings, 
money,  and  property.  Under  sect.  10  of  the  same  Act, 
"  a  married  woman  may  effect  a  policy  of  insurance 
upon  her  own  life  or  the  life  of  her  husband  for  her 
separate  use,  and  the  same  and  all  benefit  thereof,  if 
expressed  on  the  face  of  it  to  be  so  effected,  shall  enure 
accordingly,  and  the  contract  in  such  policy  shall  be 
as  valid  as  if  made  with  an  unmarried  woman."  And 
sect.  11  enables  a  married  woman  to  maintain  an  action 
in  her  own  name  for  the  recovery  of  any  wages,  earn- 
ings, money  and  property  by  the  Act  declared  to  be  her 
separate  property  ;  and  gives  her  in  her  own  name  the 
same  remedies  against  all  persons  whomsoever  for  the 
protection  and  security  of  such  Avages,  earnings,  money, 
and  property,  and  of  any  chattels  or  other  property 
purchased  or  obtained  by  means  thereof  for  her  own 
use,  as  if  such  wages,  earnings,  money,  chattels,  and 
property  belonged  to  her  as  an  unmarried  woman  (/). 

'''Under  this  Act  then,  all  married  women  r:::orA-| 
whether  married  before  or  after  the  date  of  its 
coming  into  operation  are  enabled  to  enter  into  such 
contracts  as  are  mentioned  in  the  above  sections,  during 
the  marriage,  and  thus  the  law  stands  as  to  the  contracts 
of  married  women  up  to  the  end  of  the  year  1882. 

On  the  1st  of  January,  1883,  the  "  Married  AVomen's 
Property  Act,  1882"  (45  &  46  Vict.,  c.  75),  came  into 
force,  and  now  by  sect.  1,  sub-sect.  2,  of  that  Act,  "  a 
married  woman  shall  be  capable  of  entering  into  and 

(/)  It  has  been  held  that  a  married  woman  might  under  this  section  main- 
tain an  action  in  lier  own  name  to  recover  damages  against  her  bankers  for 
dishonouring  cheques  drawn  by  her  in  the  course  of  a  trade  which  slie  carried 
on  separately  from  her  husband,  or  for  not  duly  presenting  or  not  giving  due 
notice  of  dishonour  of  a  bill  of  exchange  acquired  by  her  in  such  trade,  and 
intrusted  to  them  by  her  for  presentment, — it  being  a  remedy  for  the  protec- 
tion and  security  of  her  separate  property  within  that  section.  Summers 
t.  City  Eaak,  L.  E,.  9  C  P.  580 ;  43  L.  J.  (C.  P.)  261. 

371 


350  PARTIES   TO    CONTRACTS.  [lECT.  VI TI. 

rendering  herself  liable  in  respect  of  and  to  the  extent 
of  her  separate  property  on  any  contract,  and  of  suing 
and  being  sued,  either  in  contract  or  in  tort,  or  other- 
wise, in  all  respects  as  if  she  were  a  feme  sole,  and  her 
husband  need  not  be  joined  with  her  as  plaintiff  or  de- 
fendant, or  be  made  a  party  to  any  action  or  other  legal 
proceeding  brought  by  or  taken  sigainst  her ;  and  any 
damages  or  costs  recovered  by  her  in  any  such  action 
or  proceeding  shall  be  her  separate  property;  and  any 
damages  or  costs  recovered  against  her  in  any  such 
action  or  proceeding  shall  be  payable  out  of  her  sepa- 
rate property,  and  not  otherwise."  *Tliis  last 
*-  ^  -■  Act  seems  to  remove  all  disabilities  as  to  the 
power  of  contracting  wliich  affected  'married  women 
before  it  came  into  operation. 

There  are  then  three  periods  within  which  the  con- 
tracts of  married  women  made  during  their  marriage 
may  fall,  as  to  each  of  whicli  the  law  applicable  varies  : — 

1.  What  we  may  call  the  Common  Law  period, 
•which  terminated  on  the  8th  of  August,  1870 : 

2.  The  period  of  partial  disability,  commencing  with 
the  9th  of  August,  1870,  and  expiring  with  the  year 
1882: 

3.  The  period  of  general  emancipation  from  disability, 
commencing  with  the  1st  of  January,  1883. 

But  suppose  a  married  women  has  entered  into  a  con- 
tract and  breaks  it,  what  is  the  remedy  ? 

The  answer  depends  on  whether  the  contract  was 
made  before  or  after  the  "  Married  Women's  Property 
Act,  1882." 

If  the  contract  was  made  before  that  Act  came  into 
force,  then  the  remedy  is  not  an  action  against  her  per- 
sonally {g),  but  is  an  action  against  the  separate  estate, 

{g)  Attwood  V.  Chichester,  3  Q.  B.  D.  722  ;  47  L.  J.  (Q.  B.,  &c.)  300;  Durrant 
».  Ricketts,  8  Q.  B.  D.  177 ;  51  L.  J.  (Q.  B.)  426. 
372 


LECT.  VIII.]  MARRIED    WOMEN.  351 

if  any,  wliicli  the  woman  had  at  the  time  of  the  con- 
tract. At  Common  Law,  as  I  have  already  said  (A), 
the  person  who  contracted  with  a  married  woman,  so 
far  as  any  right  against  *lier  personally  was  porr9-| 
concerned,  relied  upon  her  bare  word.  But 
she  could,  according  to  the  rules  of  Equity,  bind  by  her 
contracts  her  separate  estate,  if  she  had  any.  She  could 
not  indeed  so  bind  any  property  which  she  might  sub- 
sequently acquire  ;  but  so  much  of  the  separate  property, 
which  she  had  at  the  time  the  contract  was  made,  as 
remained  at  the  date  of  the  judgment  against  her  estate 
was  made  liable  (i).  But  in  such  an  action  it  has  been 
held  that  the  husband  must  be  joined  with  her  as  a  de- 
fendant. Thus  in  the  recent  case  of  Hancocks  v. 
Ltiblache  (k),  the  plaintiffs  were  jewellers,  and  the  de- 
fendant, a  married  woman,  was  an  actress  and  public 
singer,  and  as  such  engaged  in  an  employment  from 
which  she  derived  wages  and  earnings  separately  from 
her  husband,  and  thereby  had  acquired  separate  property 
within  the  meaning  of  sect.  1  of  the  Married  Women's 
Property  Act,  1870.  The  plaintiffs  had  sold  jewellery 
to  her,  for  part  only  of  which  she  had  paid,  and,  iu 
order  to  ^recover  the  balance,  sued  her  alone,  rM:ono-| 
not  claiming  relief  against  her  personally,  but 
seeking  to  charge  her  separate  estate.  While  the  Court 
held  that  the  right  relief  was  sought,  it  held  also  that 
the  husband  must  be  joined  as  a  defendant,  although 

{h)  Ante,  p.  *340. 

(i)  Pike  V.  Fitzgibbon,  17  Ch.  Div.  (C.  A.)  454 ;  50  L.  J.  (Ch.)  394;  over- 
ruling S.  C.  14  Ch.  Div.  837 ;  49  L.  J.  (Ch.)  493;  King  v.  Lucas,  23  Ch.  Div. 
712  ;  53  L.  J.  (Ch.)  64.     See  also  Chapman  v.  Biggs,  11  Q.  B.  D.  27. 

(h)  3  C.  P.  D.  197 ;  47  L.  J.  (Q.  B.,  etc.)  514.  In  the  recent  case,  however, 
of  Williams  v.  Mercier,  9  Q.  B.  D.  337  (already  cited),  ante,  p.  *332,  which  was 
an  action  against  a  married  woman  sued  alone  for  debts  contracted  by  her 
before  marriage  it  was  held  by  the  Court  of  Ai)peal,  on  the  construction  of 
Beet.  12  of  the  M.  W.  P.  Act,  1870,  that  it  was  not  necessary  to  join  the  hus- 
band in  an  action  for  such  debts. 

373 


353  PARTIES   TO    CONTRACTS.  [lECT.  VIII. 

the  wife  was  living  apart  from  liim,  the  last  mentioned 
Act  not  having  altered  the  law  as  to  the  proper  mode 
of  suing  a  married  woman  in  resj)ect  of  tliat  property 
which  by  that  Act  was  made  her  separate  estate. 

Such,  then,  is  the  extent  of  the  liability  of  married 
women  in  respect  of  contracts  made  before  the  Act  of 
1882  came  into  force ;  and  it  would  seem,  from  the  sav- 
ing clause  in  sect.  22  of  the  last  mentioned  Act,  already 
cited  (/),  that  in  actions  on  such  contracts,  it  would  be 
still  right  to  join  the  husband,  but  for  the  New  Kules 
of  1883,  of  which  Order  XVI.,  rule  16,  provides  that 
married  women  may  be  sued  as  provided  by  the  Married 
Women's  Property  Act,  1882 ;  and  as  this  Act  enables 
them  to  be  sued  alone,  it  would  seem  that  in  any  such 
action  now  brought  in  the  High  Court  it  is  unnecessary 
to  join  the  husband,  whether  the  contract  was  made  be- 
fore or  after  the  last  mentioned  Act  came  into  force. 

But  what  is  the  extent  of  the  remedy  where  the  con- 
tract has  been  made  since  the  end  of  the  year  1882  ? 
-^  *In  this  case  the  married  woman  may  be  sued 

L  J  alone,  but  her  liability  is  limited  to  her  sepa- 
rate property  (m).  But,  as  we  have  already  seen,  the 
likelihood  of  her  having  separate  property  is  greatly  in- 
creased (n).  The  Bule  of  Equity  also,  which  exempts 
tlie  wife's  after-acquired  property  from  liability  to  a 
previous  contract  by  her  (o),  seems  abolished.  For  by 
sect.  1,  sub-sect.  3,  of  the  Act  of  1882,  "every  contract 
entered  into  by  a  married  woman  shall  be  deemed  to  be 
a  contract  entered  into  by  her  with  respect  to  and  to 
bind  her  separate  property,  unless  the  contrary  be 
shown."     And  by  sub-sect.  4,  "  every  contract  entered 

(0  Ante,  p.  *334. 

(m)  See  sect.  1,  sub-sect.  2,  of  the  Act  of  1882,  cited  ante,  p.  *350. 
(n)  See  M.  W.  P.  Act,  1882,  s.  2,  ante,  p.  *337. 

(o)  See  ante,  p.  *352.    See  as  to  the  alteration  of  this  rule  by  the  M.  W.P. 
Act,  1882,  Bursill  v.  Tanner,  13  Q.  B.  D.  691,  693. 

374 


LECT.  VIII.]  MAPwRIED   WOMEN.  354 

into  by  a  married  woman  with  respect  to  and  to  bind 
her  separate  property  shall  bind  not  only  the  separate 
property  which  she  is  possessed  of  or  entitled  to  at  the 
date  of  the  contract,  but  also  all  separate  property  which 
she  may  thereafter  acquire."  These  two  sub-sections 
have  no  retrospective  operation  so  as  to  include  con- 
tracts entered  into  by  a  married  woman  before  the 
commencement  of  the  Act  (p). 

Where  also  a  married  woman  carries  on  a  trade  sepa- 
rately from  her  husband,  she  may  be  made  a  bankrupt, 
sect.  1,  sub-sect.  5,  of  the  Act,  enacting  that  "every 
married  woman  carrying  on  a  trade  separately  from  her 
husband  {q)  shall,  in  respect  of  her  separate  property, 
be  subject  to  the  bankruptcy  laws  in  the  same  way  as 
if  she  were  afeme  sole,'' 

*Having  thus  disposed  of  the  considerations    r*orc-! 
arising  on  contracts  made  with  or  by  infants 
and  married  women,  I  will  postpone  the  conclusion  of 
this  branch  of  the  subject  till  the  next  Lecture. 

(p)  Conolan  v.  Leyland,  27  Ch.  Div.  G32. 

( q)  As  to  what  amounts  to  carrying  on  a  trade  separately  from  the  hasband, 
see  Lovell  v.  Newton,  4  C.  P.  D.  7. 


375 


[*356]  *LECTUEE  IX. 

PARTIES  TO  CONTRACTS. INSANE  PERSONS. — INTOXI- 
CATED PERSONS. ALIENS. CONVICTS. CORPORA- 
TIONS.  PUBLIC   COMPANIES. THE   MODE  IN  WHICH 

COMPETENT    PERSONS    CONTRACT. —  AGENTS. PART- 
NERS. 

Pursuing  the  inquiry  upon  which  I  entered  in  the 
last  Lecture  with  regard  to  the  competency  of  the  par- 
ties to  Contracts,  and  having  disposed  of  the  cases  of 
Infancy  and  Coverture,  the  next  in  order  is  that  ot  per- 
sons of  non-sane  mind,  whose  disability  arises,  not  as 
in  the  two  former  cases,  from  a  positive  rule  of  law, 
but  from  the  very  nature  of  their  disorder  itself. 

In  the  earliest  ages  of  our  law,  the  rule  which  com- 
mon sense  dictates  on  this  subject  appears  to  have  pre- 
vailed, namely,  that  a  person  deprived  of  the  use  of 
that  reason  which  is  the  instrument,  if  I  may  so  say, 
with  which  men  contract,  shall  not  be  bound,  to  his 
own  injury,  by  contracts  made  while  in  such  a  situa- 
tion.^ Tims,  in  Fitzherbert's  Natura  Brevium,  202,  it 
is  laid  down,  that  a  person  who  had  enfeoffed  another 
of  his  land  while  non  compos  might,  on  recovering  his 
intellect,  avoid  the  feoffment.  But  soon  afterwards  a 
r*^f^7l  doctrine  was  established  *of  the  most  absurd 
*"  descrijDtion  which  it  was  possible  for  the  inge- 

nuity, even  of  an  ancient  lawyer,  to  have  devised.  It 
was  admitted  that  the  acts  and  contracts  of  a  lunatic 
could  not  be  looked  upon  as  valid  as  far  as  they  affected 


>  Mitchell  V.  Kingman,  5  Pick.  431  ;  Rice  v.  Peet,  15  Johns.  503;  Gran^  w. 
Thomjison,  4  Conn.  203;  1  Story'8  Eq.  Jur.  I  225.— R. 

376 


LECT.  IX.]  INSANE    PERSONS.  357 

other  persons,  but  it  was  said  that  they  should  bind  the 
lunatic  himself,  after  he  had  recovered  the  use  of  his 
reason  ;  "  for,"  said  the  old  lawyers,  "  a  man  cannot 
remember  what  he  did  when  he  was  out  of  his  mind, 
and  consequently  cannot  recollect  whether  he  did  this 
or  that  particular  act,  or  entered  into  this  or  that  par- 
ticular contract."  And  they  actually  carried  this  so 
far,  that  it  became  a  maxim  that  a  man  should  not  be 
heard  to  stultify  himself,  and  it  is  laid  down  as  such  in 
the  405th  and  406th  sections  of  Littleton,  and  in  Stroud 
V.  Marshall  (a),  where  the  opinion  of  Fitzherbert  to  the 
contrary,  in  his  Natura  Brevium,  was  overruled. 

However,  in  more  modern  times,  the  common  sense 
of  the  Courts  began  to  be  shocked  by  this  doctrine,  and 
Sir  William  Blackstone,  in  his  Comme7itaries  {h), 
argues  with  great  force  of  reasoning  against  it.  In  the 
later  cases  of  Yates  v.  Boen  (c)  and  Faulder  v.  Silk  [d), 
it  seems  to  have  been  discarded ;  and  there  is  no  doubt 
now  that  the  lunacy  of  one  of  the  contracting  parties 
may  be  shown  by  himself  if  sued  upon  a  contract 
entered  into  while  *he  was  in  that  condition,  poco-i 
However,  it  would  not  be  for  the  lunatic's  own 
benefit  to  prohibit  him  absolutely  from  binding  himself 
by  any  contract  whatever.  Such  a  prohibition  might 
prevent  him  from  obtaining  credit  for  the  ordinary 
necessaries  of  life  ;  and  there  are  modern  cases  in  wliich 
contracts  evidently  of  a  fair  and  reasonable  description 
entered  into  with  a  lunatic  have  been  held  binding  on 
him,  and  have  been  enforced.  In  the  case  of  Baxter 
V.  Earl  of  Portsmouth  (e),  an  action  was  brought 
against  the  Earl  of  Portsmouth  for  the  hire  of  several 
carriages.     It  was  proved  that  the  carriages  were  suit- 

(a)  Cro.  Eliz.  398.  {d)  3  Camp.  126. 

(6)  2  Bla.  Com.  291.  (t)  5  B.  &  C.  (11  E.  C.  L.  E.)  170. 

(c)  Stra.  1104. 

377 


358  PARTIES   TO   CONTRACTS.  [lECT.  IX. 

able  to  Lis  rank  and  fortune,  and  that  the  price  charged 
for  them  was  a  fair  and  reasonable  one ;  but,  on  the 
other  hand,  it  appeared  that  an  inquisition  had  issued 
out  of  Chancery  under  which  the  Earl  was  found  to 
have  been  insane  for  a  period  long  anterior  to  the  time 
at  which  the  carriages  in  question  were  supplied  to  him. 
The  L.  C.  J.  Abbott,  before  whom  the  case  was  tried, 
directed  the  jury,  that,  as  the  articles  hired  were  suit- 
able to  the  station  and  fortune  of  the  defendant,  and  as 
the  plaintiffs,  at  the  time  of  making  the  contract,  had 
no  reason  to  suppose  him  of  unsound  mind,  and  could 
not  be  charged  with  practising  any  imposition  upon 
him,  they  were  entitled  to  recover;  and  the  jury  ac- 
cordingly found  a  verdict  for  the  plaintiffs.  Mr.  (after- 
r^Q-qn  wards  Lord)  ^Brougham  moved  in  the  next 
term  to  set  it  aside,  but  the  Court  supported 
the  direction  of  the  Lord  Chief  Justice. 

In  a  subsequent  case  of  Brown  v.  Jodrell  (/),  the 
lunatic  was  the  chairman  of  a  society  called  the  Athe- 
naion,  and  he  had  concurred  in  ordering  work  and 
goods  to  be  supplied  to  them  ;  for  these  Lord  Tenter  den 
held  that  he  might  be  sued  by  the  person  who  had  sup- 
plied them.  From  these  decisions  it  is  plain  that  a 
lunatic's  contracts  are  binding  in  many  instances ;  and 
some  treatises  suggest  that  he  stands  on  the  same  foot- 
ing with  an  infant,  and  is  liable  only  for  necessaries. 
But  this  is,  I  think,  not  quite  so;  nor  would  it  be 
reasonable  that  it  should  be  so ;  for,  where  a  lunatic  is 
permitted  to  go  about  and  appear  to  the  world  as  a  per- 
son of  sane  mind,  it  would  be  very  hard  indeed  to  pre- 
vent persons  who  had  supplied  him  with  goods  under 
that  impression  at  a  fair  price,  from  recovering  because 
the  articles  were  not  necessaries.     And,  in  the  case  I 

(/)  M.  &  M.  (22  E.  C.  L.  R.)  105 ;  3  Car.  &  P.  (14  E.  C.  L.  R.)  30,  S.  G. 
See  also  Dane  v.  Kirkwall,  8  Car.  &  P.  (34  E.  C.  L.  R.)  679. 

378 


LECT.  IX.]  INSANE   PEKSONS.  359 

have  just  cited,  of  Brown  v.  Jodrell,  an  infant  could 
not,  I  tliiuk,  have  been  held  liable  for  goods  supplied 
to  the  Athenaion.  A  later  case  in  which  the  subject 
has  been  canvassed,  is  that  of  Tarbuck  v.  Bispham  {g), 
in  which  one  of  the  questions  was,  whether  a  lunatic 
laboured  under  the  same  incapacity  to  bind  himself  by 
stating  an  account  as  I  have  '^already  shown  r:!:opQ-| 
you  that  an  infant  does.  The  case  went  off 
upon  a  different  point,  but  the  Court  said,  that,  had  it 
become  material  they  would  have  granted  a  rule  for  the 
purpose  of  considering  it. 

It  seems  clear  that  a  lunatic  is  liable  upon  an 
executed  contract  for  articles  suitable  to  his  degree, 
furnished  by  a  person  who  did  not  know  of  his  lunacy, 
and  practised  no   imposition   upon   him.^     Where  A. 

ig)  2  M.  &  W.  2. 


'  In  the  recent  case  of  Molton  v.  Camroux,  2  Exch.  501,  which  was  an  action 
to  recover  money  paid  by  a  lunatic  for  the  purchase  of  an  annuity,  the  jury 
found  that  the  transaction  was  a  fair  and  business  one,  and  made  by  the  de- 
fendants in  good  faith,  and  in  ignorance  of  the  plaintiff's  unsoundness, 
and  the  Court  in  giving  judgment  for  the  defendant,  thus  reviewed  the 
cases: 

"  The  plaintiff's  counsel  distinguished  the  cases  of  Brown  v.  Jodrell,  3  Car. 
&  P.  (14  E.  C.  L.  K.)  30,  and  Baxter  v.  The  Earl  of  Portsmouth,  2  C.  &  P. 
(12  E.  C.  L.  E.)  178;  5  B.  &  C.  (11  E.  C.  L.  K.)  170,  and  other  cases  of  that 
6ort,  on  the  ground  that  necessaries  furnished  to  a  lunatic  were  an  exception 
to  the  general  doctrine  that  he  could  not  make  a  contract ;  and  he  cited  the 
judgment  of  the  Lord  Chief  Baron,  in  the  case  of  Gore  v.  Gibson,  as  showing 
a  distinction  between  express  and  implied  contracts,  and  deciding  that  all  ex- 
press contracts  were  void,  if  the  parties  to  them  were  incapable  of  making  a 
contract.  On  the  other  hand,  it  was  argued  by  the  defendant's  counsel,  that 
there  was  a  distinction  between  contracts  executed  and  executory ;  that 
executory  contracts  could  not  be  enforced,  but  that  executed  contracts  could 
not  be  disturbed,  if  made  in  good  faith  and  without  notice  of  the  incapacity ; 
and  he  called  our  attention  to  this,  that  all  the  cases  cited  were  cases  where 
damages  for  the  breach  of  an  executory  contract  were  in  question,  but  that  no 
case  had  yet  decided,  that  an  executed  contract,  if  perfectly  fair  and  bond  fide, 
could  be  questioned  on  the  ground  of  the  unsoundness  of  mind  of  both  parties; 
and  he  cited  the  case  of  Howard  v.  The  Earl  of  Digby,  2  CI.  &  Fin.  63  i ;  Wil- 
liams I'.  Wentworth,  5  Beav.  325;  and  Selby  v.  Jackson,  6  Beav.  192,  to  show 

379 


360  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

advanced  money  on  mortgnge  to  B.,  a  lunatic,  but  did 
not  know  B.'s  state,  and  took  no  advantage  of  him,  he 


that  the  House  of  Lords  in  the  first  ca,se  and  Lord  Langdale  in  the  two  last, 
had  recognized  the  liability  of  lunatics  or  iheir  estate,  in  respect  of  contracts 
bond  fide,  acted  upon.  The  case  of  Niell  v.  Morley,  9  Ves.  Jr.  478,  before  Sir 
William  Grant,  to  the  same  effect,  had  been  cited  before,  by  the  counsel  for 
the  plaintiff. 

"As  far  as  we  are  aware,  this  is  the  first  case  in  which  it  has  been  broadly 
contended  that  the  executed  contracts  of  a  lunatic  must  be  dealt  with  as 
absolutely  void,  however  entered  into,  and  although  perfectly  fair,  bond  fide, 
reasonable,  and  without  notice,  on  the  part  of  those  who  have  dealt  with  the 
lunatic. 

"On  looking  into  the  cases  at  law,  we  find  that,  in  Brown  r.  Jodrell,  Lord 
Tenterden  says,  '  I  think  the  defence  (of  unsoundness  of  mind)  will  not  avail, 
unless  it  be  shown  that  the  plaintiil'  imposed  on  the  defendant.'  In  Eaxter  v. 
The  Earl  of  Portsmouth,  5  B.  &  C.  (11  E.  C.  L.  R.)  170  (the  Nisi  Prius 
authority  of  which  is  in  2  C.  &  P.  ( 12  E.  C.  L.  R.)  178),  Abbot  C.  J.,  with  the 
concurrence  of  the  rest  of  the  Court,  laid  down  the  same  doctrine.  In  Dane 
V.  Viscountess  Kirkwall,  Mr.  Justice  Patteson,  in  directing  the  jury,  said,  '  It 
is  not  suflicient  that  Lady  Kirkwall  was  of  unsound  mind,  but  you  must  be 
[satisfied  that  the  plaintiff  knew  it  and  took  advantage  of  it.' 

"  We  are  not  disposed  to  lay  down  so  general  a  proposition,  as  that  all 
executed  contracts  bond  fide  entered  into  must  be  taken  as  valid,  though  one 
of  the  parties  be  of  un.sound  mind  ;  we  think,  however,  that  we  may  safely 
conclude,  that  when  a  person.  ap{)arently  of  sound  mind,  and  not  known  to 
be  otherwise,  enters  into  a  contract  for  tiie  purchase  of  property,  which  is  fair 
and  bond  fide,  and  which  is  executed  and  completed,  and  the  property,  the 
Bubject-matter  of  the  contract,  has  been  paid  for  and  fully  enjoyed,  and  cannot 
be  restored  so  as  to  put  the  parties  in  statu  quo,  such  contract  cannot  after- 
wards be  set  aside,  either  by  the  alleged  lunatic,  or  those  who  represent  him. 
And  this  is  the  present  case,  for  it  is  the  purchase  of  an  annuity  which  has 
ceased."  Tliis  judgment  was  subsequently  affirmed  on  error  in  the  Exchequer 
Chamber,  4  Exch.  18. 

The  same  principle  was  adopted  in  Pennsylvania,  in  Beats  v.  See.  10  Pa  St. 
60  (following  La  Rue  v.  Gilkyson,  4  lb.  375),  where  it  was  held  tliat  the 
administrator  of  a  lunatic  could  not,  in  the  absence  of  fraud  or  knowledge  of 
his  state  of  mind,  or  such  conduct  on  the  part  of  the  lunatic  from  whicli  his 
disease  might  fairly  be  inferred  or  suspected,  recover  back  the  price  of  mer- 
chandise sold  to  him,  even  though  it  was  unsuited  to  the  object  for  wliich  it 
was  purchased,  and  above  market  price. 

In  Massachusetts,  however,  in  tlie  case  of  Seaver  v.  Phelps,  11  Pick.  304, 
which  was  trover  for  a  promissory  note,  pledged  by  the  plaintiff  while  in- 
sane, to  the  defendant,  the  Court  were,  on  belialf  of  the  latter,  requested  to 
charge,  tiuit  aitiiough  tiie  plaintifl"  migiit  have  been  insane  at  the  time  of 
making  the  contract,  yet  that  if  the  defendant  were  not  apprised  of  that  fact, 
or  had  no  rejison,  from  the  conduct  of  the  plaintiff  or  from  any  other  source 

380 


LECT.  IX.]  INSANE   PERSONS.  360 

■was  held  entitled  to  a  decree  of  foreclosure  (A).     It 
seems  equally  clear  that  he  is  not  liable  when  the  other 

(h)  Campbell  v.  Hooper,  24  L.  J.  (Ch.)  644.  See  also  Drew  v.  Nunn,  4  Q.  B. 
D.  60  ;  48  L.  J.  (Q.  B.)  591,  a  case  cited  more  fully  post,  at  the  end  of  this 
Lecture. 


to  suspect  it,  and  did  not  overreach  or  impose  upon  him,  or  practice  any  fraud 
or  unfairness,  the  contract  could  not  be  annulled ;  but  the  Court  refused  so  to 
charge,  and  the  jury  having  found  for  the  plaintiff,  the  Supreme  Court  af- 
firmed the  judgment  on  the  authority  of  Thompson  v.  Leach,  3  Mod.  310,  and 
regarded  the  law  on  the  subject  of  contracts,  made  by  lunatics,  as  being  on  the 
same  footing  as  those  of  an  infant ;  and  it  was  said  that  the  case  of  Baxter  v. 
The  Earl  of  Portsmouth,  supra,  was,  notwithstanding  the  dicta  in  the  case,  de- 
cided mainly  on  the  ground  of  the  carriages  being  suitable  to  the  defendant's 
condition  in  life,  and  the  opinion  of  Lord  Tenterden,  in  Brown  i:  Jodrell, 
supra,  as  to  the  materiality  of  the  absence  of  imposition,  was  disapproved.  It 
may  be  remarked,  hoAvever,  that  Thompson  v.  Leach  is  not  an  authority  for 
Buch  a  point,  further  than  that,  "the  grants  of  infants,  and  of  persons  non  com- 
pos  mentii,  are  parallel  both  in  law  and  reason,"  and  this  is  a  well-settled  rule 
of  the  law  of  real  estate,  the  grants  of  both  being  voidable :  F.  N  B.  202  n  ; 
Mitchell  V.  Kingman,  5  Pick.  431;  AUis  v.  Billings,  6  Mete.  419  (see  the 
termination  of  the  case  in  2  Cush.  19,  by  which  it  appears  that  the  party  was, 
at  times  at  least,  only  feigning  insanity) :  Fitzgerald  v.  Reed,  9  Sm.  &  M.  102. 
The  recent  case  of  Hallett  v.  Oakes,  1  Cush.  296,  was  an  action  to  recover  the 
value  of  professional  services  in  a  habeas  corpus  to  procure  the  liberation  of 
one  who  was  insane  and  remanded  as  such,  and  a  recovery  was  allowed  on  the 
ground  of  such  services  being  classed  with  necessaries,  and  having  been  ren- 
dered by  the  plaintiff  in  good  faith,  and  on  due  inquiry  into  the  grounds  and 
causes  of  the  confinement. — r. 

Where  a  person  apparently  of  sound  mind  and  not  known  to  be  otherwise, 
fairly  and  bond  fide  purchases  property,  and  receives  and  uses  the  same,  pav- 
ment  cannot  be  refused  either  by  the  alleged  lunatic  or  his  representatives: 
Matthiessen  R.  Co.  v.  M'Mahon,  38  N.  J.  o37.  As  to  the  liability  of  insane 
persons  for  necessaries,  see  Ex  parte  Northington,  1  Ala.  (S.  C.)  400 ;  Sawyer 
V.  Lufkin,  56  Me.  308. 

See  on  the  subject  of  insanity  generally,  Dennett  v.  Dennett,  44  N.  H.  531 ; 
Bond  V.  Bond,  7  Allen,  1 ;  Hovey  v.  Chase,  52  Me.  304  ;  Maddox  r.  Simmons, 
31  Ga.  512;  Somers  v.  Pumphrey,  24  Ind.  231;  Cain  v.  Warford,  33  Md.  23; 
Hall  V.  Unger,  2  Abb.  507  ;  Staples  v.  Wellington,  58  Me.  453 ;  Boyd  v.  Boyd, 
66  Pa.  St.  283;  Musselman  r.  Cravens,  47  Ind  1.— s. 

In  Kendall  i'.  May,  10  Allen,  59,  a  wealthy  lunatic  was  sued  for  board,  ser- 
vices rendered,  and  expenses  incurred  on  his  behalf.  Among  the  latter  were 
charges  for  pleasure  trips  made  by  plaintiff  and  his  wife  with  the  lunatic  at 
his  invitation.  The  court  said :  "The  judge  properly  refused  to  instruct  the 
jury  that  the  journey  taken  by  the  defendant  out  of  the  State  was  not  reason- 
ably necessary  for  him,  and  that  the  plaintiff  could  not  properly  take  him  on 

381 


360  PARTIES    TO   CONTRACTS.  [lECT.  IX. 

contracting  party  has  taken  advantage  of  his  lunacy : 
indeed,  that  was  the  decision  in  Levy  v.  Baker,  reported 
in  a  note  to  Brown  v.  Jodrell  (^). 

The  law  upon  the  subject  has  also  been  reviewed  by 
the  Court  of  Exchequer  in  the  case  of  Molton  v.  Cam- 
roux  (k).  This  was  an  action  for  money  had  and  re- 
ceived, brought  by  the  administration  of  an  intestate,  to 
recover  from  an  annuity  society  the  price  paid  by  the 
intestate  for  annuities  granted  by  the  society.  The 
ground  was,  that  the  intestate  was  not  of  sound  mind 
when  he  paid  the  money.  The  elaborate  judgment  de- 
livered by  Pollock,  C.  B.,  will  amply  repay  an  attentive 
perusal.  "As  far  *as  we  are  aware,"  the  Court 
L  -I  said,  "  this  is  the  first  case  in  which  it  has  been 
broadly  contended  that  the  executed  contracts  of  a 
lunatic  must  be  dealt  with  as  absolutely  void,  however 
entered  into,  and  althougli  perfectly  fair  and  bond  fide, 
reasonable,  and  without  notice  on  the  part  of  those  who 
have  dealt  with  the  lunatic ;"  and  the  Court  refused  to 

(i)  M.  &  M.  (22  E.  C.  L.  E.)  106,  n.  {k)  2  Ei.  487. 


a  journey  for  pleasure  out  of  the  State  without  the  sanction  of  his  former 
guardian  or  of  the  courts  or  of  his  relations.  .  .  .  The  plaintiff  incurred  the 
risk  of  being  able  to  satisfy  the  jury  that  the  charges  were  reasonable  and 
proper.  The  fact  that  the  former  guardian  had  provided  rooms  and  neces- 
saries for  the  ward,  was  not  material.  ...  It  appears  that  he  is  capable  of  en- 
joying, to  some  extent,  many  pleasures  and  luxuries,  and  that  he  has  prefer- 
ences as  the  place  of  his  residence  and  his  associates.  Humanitj"^  and  hia 
right  to  his  own  property  require  that  he  should  not  be  restrained  or  thwarted 
in  his  preferences  and  enjoyments  more  than  is  necessary  for  his  own  welfare." 
Among  the  later  American  cases  see  Titcomb  v.  Vantyle,  84  111.  371 ;  McCor- 
mick  V.  Tittler,  85  lb.  62 ;  Willemin  v.  Dunn,  93  lb.  511 ;  Hospital  v.  Fairbanks, 
129  Mass.  78 ;  Matthiessen  R.  Co.  v.  McMahon,  38  N.  J.  537  ;  Blakeley  v.  Blake- 
ley,  33  N.  J.  Eq.  502  ;  Young  v.  Stevens,  48  N.  II.  133  ;  Ins.  Co.  v.  Hunt,  79 
N.  Y.  541 ;  Kneedler's  Appeal,  92  Pa.  St.  428 ;  Wirebach  i-.  Bank,  97  lb.  543 ; 
Ashcraft  v.  De  Armand,  44  Iowa,  229  ;  Burgess  v.  Pollock,  53  lb  273  ;  Rusk  v. 
Fenton,  14  Bush,  490 ;  Northington,  ex  parte,  37  Ala.  496 ;  Henry  v.  Fine,  23 
Ark.  417 ;  Henderson  v.  McGregor,  30  Wis.  78 ;  Wilder  v.  Weakley,  34  Ind. 
181. 

382 


LECT.  IX.]  INSANE   PERSONS.  361 

allow  the  money  to  be  recovered  back.  The  case  was 
carried  by  a  writ  of  error  into  the  Court  of  Exchequer 
Chamber  {I),  and  that  Court  laid  down  (affirming  the 
judgment  of  the  Court  below),  that  when  the  lunatic's 
state  of  mind  was  unknown  to  the  other  contracting 
party,  and  no  advantage  was  taken  of  him,  and  the 
contract  was  not  merely  executory,  but  executed  in  the 
whole  or  in  part,  and  the  parties  cannot  be  restored  to 
their  original  position,  the  contract  is  not  void  on  ac- 
count of  lunacy.  A  subsequent  case  of  Beavan  v. 
M'Donnell  (m)  differed  in  some  degree  from  the  one 
last  cited.  The  action  was  brought  to  recover  a  deposit 
paid  on  a  contract  for  the  purchase  of  real  estate,  the 
title  of  which  the  plaintiff  was  to  accept  unless  he  ob- 
jected within  a  specified  time.  It  w^as  admitted  upon 
the  pleadings,  that  at  the  time  the  plaintiff  entered  into 
the  contract  he  was  a  lunatic,  and  ^therefore  r:i-.o/-.9-| 
incapable  of  contracting,  or  of  understanding 
the  meaning  of  a  contract,  or  of  managing  his  affairs, 
and  that  the  contract  was  of  no  use  or  benefit  to  him, 
but  that  his  state  was  unknown  to  the  defendant.  The 
Court  said  that  the  contract  was  entered  into  by  the 
defendant  fairly  and  in  good  faith,  and  without  knowl- 
edge of  the  lunacy  ;  and  being  a  transaction  completely 
executed,  so  far  as  the  deposit  was  concerned,  the  de- 
fendant had  done  all  he  ought  to  do  to  make  it  his  own. 
The  plaintiff  had  had  all  he  bargained  for — the 
power  of  buying  an  estate,  and  a  title  established  in  a 
given  time,  on  payment  of  the  residue  of  the  purchase- 
money.  The  Court  thought  the  case  came  within  the 
principle  upon  which  Molton  v.  Camroux  was  decided, 
and  that  it  made  no  difference  that  it  was  admitted  that 

(l)  Molton  V.  Camroux,  4  Ex.  17  ;  Campbell  v.  Hooper,  24  L.  J.  (Cli.)  644. 
(m)  23  L.  J.  (Ex.)  94 ;  9  Ex.  309,  S.  C.    See  23  L.  J.  (Ex.)  326  ;  10  Ex.  184  : 
Moss  r.  Tribe,  3  Fost.  &  Finl.  9. 

383 


362  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

the  plaintiff  was  incapable  of  understanding  the  mean- 
ing of  contracts ;  whereas  in  the  former  case  it  was  not 
necessary  to  be  inferred  that  he  was  incapable  of  know- 
ing the  nature  of  his  acts.  As  a  lunatic  is  liable  upon 
such  contracts  entered  into  by  himself,  so  he  is  liable 
for  necessaries  furnished  to  his  wafe  (n),  he  having  be- 
come lunatic  since  the  marriage;  for,  by  contracting 
the  relation  of  marriage,  a  husband  takes  on  himself 
the  duty  of  supplying  his  wife  with  necessaries ;  and  if 
he  does  not  perform  that  duty,  either  through  his 
pj-o/^o-i  *own  fault  or  in  consequence  of  a  misfortune, 
such  as  lunacy,  the  wife  has  by  reason  of  that 
relation  an  authority  to  procure  them  herself,  and  the 
husband  is  responsible  for  what  is  so  supplied.  But  it 
would  seem  to  be  the  better  opinion  that  an  executory 
contract  entered  into  by  a  lunatic  of  non-sane  mind  at 
the  time  he  entered  into  it,  cannot  be  enforced  against 
him ;  sed  qucere? 

{n)  Read  v.  Legard,  6  Ex.  636. 


*  In  Wirebach  v.  First  National  Bank,  97  Pa.  St.  543,  Trunkey,  J.,  laid  dowE 
the  rule  very  broadly.  He  said,  "  Tliere  can  be  no  binding  executory  agree- 
ment where  one  of  the  parties  is  bereft  of  reason  ;  a  capacity  to  contract  is 
absolutely  necessary.  An  insane  person  is  incapable  of  committing  a  crime  or 
making  a  contract.  The  question  now  presented,"  he  continued,  "  is :  Will 
an  action  lie  on  the  accommodation  endorsement  of  a  promissory  note  by  a 
lunatic?  .  .  .  The  holder  of  a  madman's  note  stands  in  no  better  position 
than  the  payee.  An  acconmiodation  maker  or  endorser,  in  fact,  is  a  surety 
for  the  principal  debtor,  and  where  he  is  an  infant  or  an  insane  person,  he  or 
his  i-epresentatives  may  defend  as  in  other  forms  of  contract.  We  are  not 
persuaded  that  commercial  or  public  interests  require  an  adjudication  that  a 
lunatic  who  signs  a  contract  as  surety,  or  as  accommodation  maker  or  en. 
dorser,  is  liable  for  the  debt  of  another  man."  See  also  Beavan  v.  M'Donnell, 
9  Exch.  309  ;  Loomis  v.  Spencer,  2  Paige,  158 ;  Skidmore  v.  Romaine,  2  Bradf. 
(N.Y.)  122. 

A  person  mentally  incapable  of  entering  into  a  contract  cannot  contract  a 
valid  marriage ;  but  it  must  appear  beyond  question  that  the  party  was  an 
absolute  lunatic,  and  even  in  this  case  the  contract  is  capable  of  ratification 
when  the  sanity  of  the  party  is  restored.  Fraud  or  coercion  brought  to  bear 
upon  a  party  of  weak  mind  is  sufficient  ground  for  the  rescission  of  a  marriage 

384 


LECT.  IX.]  INTOXICATED    PERSONS.  363 

As  the  law  regarding  tlie  contracts  of  lunatics  has 
exerienced  some  alteration,  so  also  has  the  law  regard- 
ing contracts  entered  into  by  the  class  of  persons  whom 
I  shall  next  specify, — I  mean  persons  deprived  of  the 
use   of  their   ordinary  understanding   by  intoxication. 
It   has   been    always    admitted  that  if  one   man,    by 
contrivance  and  stratagem,  reduced  another  to  a  state  of 
inebrity,  and  induced  him  while  in  that  state,  to  enter 
into  a  contract,  it  would  be  void  upon   the   ordinary 
ground  of  fraud ;  for  the  liquor  would  be  in  such  case 
an  instrument  used  by  the  one  party  to  assist  him  in 
his  plot  against  the  other  (o),^     But  it  has  been   sup- 
posed that,  where  the  drunkenness  of  the  contracting 
party  was  occasioned,  not  by  the  fraud  of  the  contractee, . 
but  by  his  own  folly,  he  could  not  in  sucli  a  case  set  it 
up  as  a  defence  ;  since,  by  doing  so,  he  would  take  ad- 
vantage of  his  own  wrong.     You  will  see  this  view 
taken  in  Co.  Litt.  247  a,  and  even  so  *late  as    rH:of?4n 
Cory  V.  Cory  {p).     There  are,  however,  several 
later  cases,  in  which  it  seems  to  have  been  treated  as 
erroneous.     In  Pitt  v.  Smith  (q),  issue  had  been  joined  s 
upon   the   question  whether  there   was  an    agreement 
between  the  plaintiff  and  defendant  for  the  sale  of  an 
estate.     It  was  proved  that  in  fact  there  was  an  agree- 
ment signed,  but  one  of  the  parties  when  he  signed  it 
was    intoxicated  :    Lord    Ellenharough   said  : — "  There' 
was  no  agreement  between  the  parties,  if  the  defendant 

(o)  Gregory  v.  Fraser,  3  Camp.  454  ;  Brandon  v.  Old,  3  Car.  &  P.  (14  E.  C. 
L.  R.)  440. 
(p)  1  Ves.  19. 
{q)  3  Camp.  33. 


in  cases  where  the  incapacity  of  the  party  is  not,  of  itself,  sufficient  to  induce 
the  court  to  avoid  the  contract :  Wharton  &  Stille's  Med.  Jur.,  ^  17,  18,  and 
cases  cited. 

'  Hotchkiss  V.  Fortson,  7  Yerg.  67 ;  Harvey  v.  Pecks,  1  Munf.  518. — R. 

25  385 


364  PARTIES    TO    COXTEACTS.  [lECT.  IX. 

was  intoxicated  in  the  manner  supposed,  wlien  lie  signed 
this  paper.  He  had  not  an  agreeing  mind.  Intoxica- 
tion is  good  evidence  upon  a  plea  of  non  est  factum  to  a 
deed,  of  non  concessit  to  a  grant,  or  non  assumpsit  to  a 
promise ;"  and  he  directed  a  nonsuit,  which  the  full 
Court  afterwards  refused  to  set  aside.  In  Fenton  v. 
Holloway  (r)  Lord  Ellenborough  again  ruled  in  the 
same  manner  {s)}     And  it  may  be  considered  as  now 

(r)  1  Stark.  (2  E.  C.  L.  E.)  126. 

(s)  See  bentance   v.  Poole,  3  Car.  &  P.  (14  E.  C.  L,  K.)  1 ;  Cooke  v.  Clay- 
worth,  18  Yes.  12. 


^  In  Gore  v.  Gibson,  13  M.  &  W.  625,  Pollock,  C.  B.,  referred  to  the  con- 
clusion drawn  from  the  autliorities  by  Chancellor  Kent,  in  his  Commentaries 
(vol.  ii.  p.  451),  viz. :  that  no  contract  made  by  a  person  in  that  state,  when 
he  does  not  know  the  consequences  of  his  acts,  is  binding  upon  him;  and 
added,  that  it  seemed  to  be  in  accordance  with  reason  and  justice.  It  is  im- 
material, moreover,  wliether  the  drunkenness,  if  carried  to  that  extent,  were 
voluntary,  or  the  result  of  design  in  the  other  party  :  Barrett  v.  Buxton,  2 
Aik.  167  ;  Wigglesworth  v.  Steers  1  Hen.  &  Munf.  70;  Prentice  ?•.  Achorn,  2 
Paige,  30  ;  Cooke  r.  Clayworth,  18  Ves.  Jr.  15.  And  on  the  other  hand,  it  is 
equally  well  settled,  that  mere  intoxication,  unless  carried  so  far  as  to  benumb 
the  understanding,  will  not  of  itself  constitute  a  defence  to  the  performance  of 
a  contract,  or  afford  a  ground  for  its  rescission  if  executed :  Belcher  v.  Belcher, 
10  Yerg.  121  ;  Pittenger  v.  Pittenger,  3  N.  J.  Eq.  156;  French  v.  French,  8 
Ohio,  214;  Jenncrs  v.  Howard,  6  Blackf  240.  Whether  the  intoxication  was 
8o  complete  as  to  destroy  "  the  agreeing  mind,"  is,  of  course,  a  question  for 
the  jury  :  Burroughs  r.  Richman,  13  N.  J.  238.  If,  however,  it  were  proved 
that  advantage  was  taken  of  a  person  excited  by  drink,  though  not  to  such  an 
extent  as  to  impair  all  his  reasoning  faculties,  it  is  apprehended  that  at  law 
the  case  might  be  brought  within  the  ground  of  fraud,  although  the  contract- 
ing party  might  not  have  been  directly  incited  to  drink  by  the  other ;  and  it 
is  well  settled  that  equity  will  afford  relief  under  such  circumstances :  Rey- 
nolds V.  Waller,  1  Wash.  164  ;  Crane  v.  Conklin,  1  N.  J.  Eq.  346 ;  Hutchinson 
V.  Tindall,  3  N.  J.  Eq.  357  ;  Pittenger  v  Pittenger,  lb.  15G  ;  Conant  v.  Jackson, 
16  Vt.  335 ;  Campbell  v.  Spencer,  2  Binn.  133 ;  and  so  when  the  mind  is  en- 
feebled by  habitual  intoxication:  Wilson  v.  Bigger,  7  W.  &  S.  124  ;  Morrison 
r.  M'Leod,  2  Dev.  &  Bat.  Eq.  221.  It  is  evident,  however,  that  although  one 
may,  by  reason  of  drunkenness,  be  incapable  of  contracting,  yet  his  contract 
may  be  ratified  by  his  retaining  the  subject  of  the  contract  when  sober :  Gore 
V.  Gibson,  supra. — r. 

Drunkenness  does  not  render  a  deed  made  under  its  influence  absolutely 
void,  but  only  voidable :  so  long  as  the  grantor  in  the  deed  acquiesces  in  it,  it 
cannot  be  impeached  by  third  persons  on  the  ground  that  it  was  executed  by 

386 


LECT.  IX.]  ALIENS.  3G4 

settled,  that  intoxication  avoids  a  contract  when  it  is  so 
comjDlete  as  to  prevent  a  man  from  knowing  what  he  is 
about :  in  that  state  he  is,  in  common  parlance,  "  not 
himself,"  nor  are  his  acts  his  own.  Thus,  in  Gore  v. 
Gibson  (t),  where  the  endorsee  of  a  bill  sued  the  en- 
dorser, who  pleaded  drunkenness  at  the  time  of  the 
endorsement,  it  was  held  that  this  *was  a  good  phopr-i 
answer  to  the  action.  "  It  is  just  the  same," 
said  Mr.  Baron  Alderson,  in  that  case,  "  as  if  the  de- 
fendant had  written  his  name  upon  the  bill  in  his  sleep, 
in  a  state  of  somnambulism."  Some  of  the  dicta,  how- 
ever, of  the  judges  in  the  case  last  cited,  which  seem  to 
go  the  length  of  holding  such  a  contract  absolutely  void, 
have  not  been  supported  in  all  their  fulness ;  and  it  has 
been  recently  held  that  the  contract  of  a  man  too  drunk 
to  know  what  he  is  about,  is  voidable  only,  and  not 
void,  and  therefore  capable  of  ratification  by  him  when 
he  becomes  sober  {u). 

I  have  now  to  direct  your  attention  to  aliens.  And 
we  again  subdivide  this  class  into  two  minor  ones,  of 
alien  friends,  and  alien  enemies.     With  regard  to  alien 

(0  13  M.  &  W,  623. 

(u)  Matthews  v.  Baxter,  L.  K.  8  Ex.  132 ;  42  L.  J.  (Ex.)  73. 


him  when  drank :  Eaton  v.  Perry,  29  Mo.  96.  If  intoxication  is  carried  so 
far  that  the  reasoning  powers  are  destroyed,  the  contract  is  void  ;  but  when  it 
falls  short  of  this,  the  contract  will  not  be  avoided,  unless  undue  advantage  has 
been  taken  by  one  party  of  the  condition  of  the  other  :  Birdsong  v.  Birdsong, 
2  Head,  289;  Mansfield  v.  "VVatson,  2  Iowa,  111  ;  Johnson  i'.  Rockwell,  12  Ind! 
76.  One  found  by  inquisition  to  be  an  habitual  drunkard  is  thereby  rendered 
incompetent  subsequently  to  enter  into  a  contract  which  will  bind  his  estate : 
Imhoff  V.  Witmer,  31  Pa.  St.  243.  See,  generally,  Henry  v.  Ritenour,  31  Ind! 
136;  Caul  kins  !•.  Fry,  35  Conn.  170;  Phelan  v.  Gardner,  43  Cal.  306;  Reins- 
kopf  V.  Rogge,  37  Ind.  207 ;  Joest  v.  Williams,  42  Ind.  565  ;  Johns  v.  Fritchey; 
39  Md.  258.  [McSparran  v.  Neeley,  91  Pa.  St.  17  ;  Miller  r.  Finley,  26  Mich. 
249  ;  Scanlan  v.  Cobb,  85  111.  296.  A  drunkard  is  liable  for  necessaries  fur- 
nished for  his  support:  Meares,  in  re,  10  Ch.  Div.  552;  Sawyer  v.  Lufkin,  56 
Me.  309  ;  Darby  v.  Cabanne,  1  Mo.  App.  126.]— 8. 

387 


365  PARTIES   TO    CONTRACTS.  [lECT.  IX. 

friends,  they  have  a  right  to  contract  with  the  subjects 
of  this  country,  and  may  sue  on  such  contracts  in  the 
Courts  of  this  country  [v),  whether  the  contract  was 
made  in  England  or  abroad;  with  this  distinction,  that 
if  it  was  made  in  England,  it  is  expounded  according 
to  the  law  of  England  ;^    if  abroad,  according  to  the 
law  of    the    country  where  it    was    made     [x).     But, 
p.j.o/^..-|    ^whether  it  was  made  abroad  or  in  England, 
the  person  who  sues  on  it  here  must  take  the 
remedy  here  as  he  finds  it,  although,  perhaps,  abroad 
there  might  have  been  a  more  advantageous  one.  Thus, 
for  instance,  to  an  action  on  a  bill  of  exchange,  the 
French  period  of  limitation  is  five  years,  ours  is  six ; 
now,  if  an  action  be  brought  here  on  a  French  bill,  the 
courts  here  will  not  adopt  the  French  period  of  limita- 
tion, but  our  own,  and  so  the  payee  may  recover  here 
at  any  time  within  six  years,  though  in  France,  where 
the  bill  w^as  made,  he  must  have  brought  his  action 
within  j^ye;  the  reason  for  which  is,  that  the  period  of 
limitation  within  which  a  remedy  is  to  be  pursued  is 
part  and  parcel  of  the  remedy  itself,  and,  though  a 

(r)  Bac.  Abr.  Aliens,  D. ;  Com.  Dig.  Alien,  C.  5. 

(x)  For  the  application  of  the  principle  in  the  case  of  bills  of  exchange, 
see  now  45  &  46  Vict.,  c.  61  (Bills  of  Exchange  Act,  1882),  s.  72.  Where  the 
subject-matter  of  the  contract  is  real  property,  there  the  Ux  locireisitce  applies 
wherever  the  contract  is  made.  See  Adams  v.  Clutterbuck,  10  Q.  B.  D.  403  ; 
52  L.  J.  (Q.  B.)  607. 


'  Provided  the  subject  of  the  contract  be  personal  property.  But  it  is  well 
settled  on  this  side  of  the  Atlantic  that  any  interest  or  title  to  real  estate  can 
only  be  acquired  or  transferred  according  to  the  lex  loci  rei  siUp,  and  not  ac- 
cording to  the  lex  loci  contractus :  Cutter  v.  Davenport,  1  Pick.  81 ;  Hosford  v. 
Nichols,  1  Paige,  220 ;  Chapman  v.  Robertson,  6  Paige,  630 ;  Wills  v.  Cowper, 
2  Ohio,  124.  Such,  too,  seems  to  be  the  law  in  England :  Robinson  v.  Bland,  1 
W,  Black.  246;  2  Burr.  1079;  Scott  v.  Allnutt,  2  Dow  &  CI.  412;  Fergusson 
on  Mar.  &  Div.  395 ;  Curtis  v.  Hutton,  14  Ves.  Jr.  541 ;  Birtwhistle  v.  Vardill, 
5  B.  &  C.  (11  E.  C.  L.  R.)  438;  9  Bligh.  32.  Some  of  the  foreign  jurists, 
however,  do  not  recognise  this  distinction  between  movables  and  immovables. 
See  Story's  Conflict  of  Laws,  ^  52,  &c. — B. 

388 


LECT.  IX.]  ALIENS.  366 

contract  is  interpreted  by  the  law  of  the  country  where 
it  is  made,  the  remedy  must  be  pursued  as  it  exists  in 
the  country  where  the  suit  is  brought  (3/). 

I  have  rather  digressed,  for  the  purpose  of  pointing 
out  these  two  rules  to  you.     They  are  two  of   r*qz:»7-i 
*the  most  celebrated  principles  of  our  law,  and 
there  is  scarcely  any  question  arising  on  a  foreign  con- 
tract which  they  will  not  solve  {z)} 

So  far  with  regard  to  contracts  made  with  alien 
friends ;  now  with  regard  to  alien  enemies,  i.  e.,  aliens 
whose  government  is  at  war  with  this  country.  All 
contracts  made  with  them  are  wdiolly  void  (a).^  In- 
deed, in  one  case  it  was  decided,  that,  if  the  contract 
was  made  during  war,  it  does  not  become  capable  of 

(y)  Huber  v.  Steiner,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  202 ;  Cocks  v.  Purdaj, 
5  C.  B.  (57  E.  C.  L.  E.)  860;  Leroux  v.  Brown,  12  C.  B.  (74  E.  C.  L.  R.)  801 ; 
22  L.  J.  (C.  P.)  1 ;  Ruckmaboye  v.  Mottichund,  8  Moo.  P.  C.  4.  See,  also. 
Pe  Greuchy  v.  Wills,  4  C.  P.  D.  362;  48  L.  J.  (Q.  B.,  etc.)  726;  cited  more 
fully,  ante,  p.  *333  ;  Alliance  Bank  of  Simla  v.  Casey,  5  C.  P.  D.  429  ;  49  L.  J. 
(C.  P.)  781.  In  this  case  an  action  on  a  bond  executed  in  India  was  held  not 
barred  here  till  after  twenty  years.  In  India  specialty  debts  have  no  greater 
efficacy  than  simple  contract  debts,  and  are  barred  in  three  years. 

(z)  They  are  carried  out  and  explained  in  British  Linen  Company  v.  Drum- 
mond,  10  B.  &  C.  (21  E.  C.  L.  R.)  903 ;  and  De  la  Vega  v.  Vianna,  \  B.  &  Ad. 
(20  E.  C.  L.  R.)  284.  See,  also,  the  notes  to  Mostyn  v.  Fabrigas,  1  Smith,  L. 
C.  pp.  693  eL  seqq.,  8th  ed. ;  and  Story's  Conflict  of  Laws. 

(a)  Biandon  v.  Nesbitt,  6  T.  R.  23;  De  Wahl  v.  Braune,  25  L  J.  (Ex.)  343; 
1  H.  &  N.  178;  Willison  v.  Patteson,  7  Taunt.  (2  E.  C.  L.  R.)  439;  Esposito 
V.  Bowden,  27  L.  J.  (Q.  B.)  17  ;  7  E.  &  B.  (90  E.  C.  L.  R.)  763. 

^  The  student  will  find  all  the  law  upon  this  interesting  subject  collected  in 
the  8th  and  14th  Chapters  of  Story's  Conflict  of  Laws. — r. 

'■*  There  is  an  exception  to  this  rule  which  naturally  springs  from  it,  ■which 
is,  that  contracts  made  with  an  alien  enemy  for  the  payment  of  ransom-money 
or  for  subsistence,  can  be  enforced  Tlius,  in  Antoine  r.  Morshead.  6  Taunt. 
(1  E.  C.  L  R.)  237,  an  alien  to  whom  was  endorsed  a  bill  of  exchange,  drawn 
by  one  English  subject,  detained  a  prisoner  in  France,  ujion  another  subject, 
■was  held  entitled  to  recover  its  amount  in  England  after  the  return  of  peace. 

In  the  well-known  case  of  Griswold  v.  "Waddington,  15  Johns.  57,  in  error. 
16  lb.  438-510.  the  whole  law  upon  the  subject  of  contracts  ■with  alien 
enemies  was  elaborately  examined  in  an  able  opinion  by  Mr.  Chancellor 
Kent. — R. 

389 


367  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

being  enforced  even  on  the  return  of  peace ;  although, 
if  a  contract  be  made  with  an  alien  friend,  and  a  war 
afterwards  breaks  out  between  his  country  and  this,  the 
effect  is  to  suspend  his  right  to  sue  upon  the  contract 
until  the  return  of  peace,  not  wholly  to  disqualify  him 
from  suing  {b). 

It  seems  sufficiently  connected  with  the  subject  of 
this  work  to  add,  that  by  the  Common  Law,  aliens  may 
acquire  and  possess  within  this  realm,  by  gift,  trade,  or 
other  means,  any  goods  personal  whatever,  as  well  as  an 
Englishman  (c).  And  by  *the  Naturalization 
L  ^^^J  Act,  1870  (33  &  34  Vict.,  c.  14),  s.  2,  real  and 
personal  property  of  every  description  may  be  taken, 
acquired,  held,  and  disposed  of  by  an  alien  in  the  same 
manner  in  all  respects  as  by  a  natural-born  British  sub- 
ject ;  and  a  title  to  real  and  personal  property  of  every 
description  may  be  derived  through,  from,  or  in  succes- 
sion to  an  alien,  in  the  same  manner  in  all  respects  as 
through,  from,  or  in  succession  to  a  natural-born  British 
subject. 

Anotlier  class  of  persons  who  are  disabled  from 
enforcing  contracts  are  outlaws  {d),  and  persons  under 
sentence  for  felony  (e).  They  are,  however,  liable 
upon  the  contracts  made  by  them  while  in  that  situa- 
tion, though  incapable  of  taking  advantage  of  them  (/). 
This  disability  is  removed  by  pardon;  and  when  the 
attainder  or  outhuvry  is  removed,  the  party  may  con- 
tract and  sue  as  before  (y).  It  should  be  observed, 
however,  that  the  law  as  to  the  inability  of  felons  to 

(6)  Flindt  v.  Waters,  15  East,  260 ;  Alcenius  v.  Nygrin,  24  L.  J.  (Q.  B.) 
19. 

(c)  Calvin's  Case,  7  Co.  Rep.  1. 

(d)  Outlawry  in  civil  proceedings  is  abolished  by  42  &  43  Vict.,  c.  59  (Civil 
Procedure  Acts  Repeal  Act,  1879),  s.  3. 

(e)  Dallock  v.  Dodds,  2  B.  &  A.  (5  E.  C.  L.  R.)  258. 
(/)  Ramsey  v.  Macdonald,  Foster,  C.  L.  61. 

(g)  Bac.  Abr.  "  Outlawry,"  H. 

390 


LECT.  IX.]  CONVICTS COKPORATIONS.  368 

enforce  contracts  lias  been  modified  by  33  &  34  Vict.,  c. 
23,  whicli  was  passed  on  the  4tli  of  July,  1870.  Sect.  1 
of  that  Act  provides  that,  "  from  and  after  the  passing 
of  this  Act,  no  confession,  verdict,  inquest,  conviction,  or 
judgment  of  or  for  any  treason  or  felony  or  felo  r*o/^Q-i 
"^de  se,  shall  cause  any  attainer  or  corruption  of 
blood,  or  any  forfeiture  or  escheat,  provided  that  noth- 
ing in  this  Act  shall  affect  the  law  of  forfeiture  conse- 
quent upon  outlawry."  The  Act  then,  in  sect.  6,  defines 
the  word  "  convict,"  as  thereinafter  used,  to  mean  any 
j)erson  against  whom,  after  the  passing  of  the  Act,  judg- 
ment of  death  or  penal  servitude  shall  have  been  pro- 
nounced or  recorded  by  any  court  of  competent  jurisdic- 
tion in  England,  Wales,  or  Ireland,  upon  any  charge 
of  treason  or  felony.  Sect.  7  states  when  a  "convict'* 
ceases  to  be  subject  to  the  operation  of  the  Act.  And 
sect.  8  disables  a  "convict"  from  suing  or  making  any 
contract  while  subject  to  the  operation  of  the  Act.  Sect. 
30,  however,  suspends  the  disabilities  of  sect.  8  as  to  a 
"  convict "  lawfully  at  large  under  a  license. 

There  is  one  other  class,  I  was  about  to  say  of  indi- 
viduals, but  that  would  have  been  incorrect  (for, 
although  persons  in  the  eye  of  the  law,  they  are  not 
individuals  in  common  parlance),  regarding  whose 
power  of  contracting  I  have  a  few  words  to  say, — I 
mean  corporatiojis  aggregate.  A  corporation  aggregate 
consists,  as  you  know,  of  a  number  of  individuals  united 
in  such  a  manner  that  they  and  their  successors  con- 
stitute but  one  person  in  law.  Thus,  the  mayor,  alder- 
men, and  burgesses  of  a  borough  are  a  corporation,  and 
as  such  have  an  existence  distinct  from  that  of  the  indi- 
vidual mayor,  and  of  the  individuals  enjoying  the 
franchiseof  burgess,  *or  post  of  alderman.  But  r^on(\-\ 
then,  this  corporate  existence  being  an  ideal 
one,  and  the  creature  of  the  law,  it  is  obviously  impos* 

391 


370  ,  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

sible  that  the  corporation  can  contract  in  the  same  way 
as  an  ordinary  person.  Accordingly  the  law,  the  crea- 
ture of  which,  as  I  have  said,  it  is,  has  provided  for  it 
a  mode  of  contracting,  namely  by  its  common  seal, 
which,  being  affixed  to  the  contract,  authenticates  it, 
and  makes  it  the  deed  of  the  corporation ;  and,  as  a 
general  rule,  that  is  the  only  way  in  which  a  corpora- 
tion can  contract  (h)}  A  few  instances  will  show  the 
force  and  the  application  of  this  important  rule.  Thus, 
in  the  Mayor  of  Ludlow  v.  Charlton  [i),  the  defendant 
had  laid  out  a  sum  of  money  in  pulling  down  and  alter- 
ing an  inn  and  doing  other  work,  at  the  request  and  for 
the  convenience  of  the  corporation,  confiding  in  their 
promise  to  pay  him  that  sum  for  such  work  ;  but  though 
he  laid  out  more  than  that  sum,  he  was  unable  to 
charge  the  corporation  with  it,  from  having  neglected 
the  very  obvious  and  easy  mode  of  binding  the  corpora- 
tion by  deed,  as  the  law  prescribes.  Even  an  entry  by 
the  corporation  in  their  own  books  of  a  minute  of  this 
agreement,  was  not  admitted  to  bind  them.  In  Arnold 
V.  The  Mayor  of  Poole  (j),  the  plaintiff  had  performed 
r*^711  *^^^^  duties  of  attorney  to  the  corporation  of 
that  place,  which  had  incurred  a  large  debt  to 
him ;  but  having  only  been  appointed  by  the  mayor 
and  council,  and  not  under  the  seal  of  the  borough,  he 
could  not  recover  his  costs,  although  the  counsel  of  the 

(A)  Com.  Dig.  Franchises,  F.  13. 
(i)  6  M.  &  W.  815. 

(j)  4  M.  &  G.  (43  E.  C.  L  R.)  860.    See  Queen  v.  Mayor,  &c.,  of  Stamford, 
6  Q.  B.  (51  E.  C.  L.  R.)  433. 


^  A  corporation  may  adopt  the  seal  of  another,  or  an  ink  impression : 
Grossman  v.  Hilltown  Co.,  3  Grant,  225.  When  agents  executing  an  instru- 
ment in  behalf  of  a  corporation,  sign  their  own  names  and  affix  their  own 
seals,  such  seals,  are  merely  nugatory ;  and  the  instrument  will  be  binding  on 
the  corporation  as  a  simple  contract  if  it  is  in  other  respects  valid :  Regents 
V.  Detroit  Society,  12  Mich.  138.— s. 
392 


LECT.  IX.]  CORPORATIONS.  371 

borough  had  passed  a  resolution  directing  the  business 
to  be  done  by  him,  and  knew  of  its  progress.  In 
Paine  v.  The  Guardians  of  the  Poor  of  the  Strand 
Union  (Z-),  the  guardians,  who  are  a  corporation  by 
statute,  had  ordered  tlie  phiintifip,  a  surveyor,  to  make  a 
survey  and  a  map  of  the  rateable  property  in  a  parish 
which  was  part  of  the  union,  but  as  the  plaintift*  had 
not  insisted  upon  having  his  retainer  under  seal,  he  was 
unable  lo  recover  for  the  survey  or  the  map. 

This  general  rule,  however,  has  from  the  earliest 
traceable  periods  been  subject  to  exceptions,^  the  deci- 
sions as  to  which  furnish  the  principle  on  which  they 
have  been  established,  and  are  instances  illustrating  its 
application,  but  are  not  to  be  taken  as  so  prescribing  in 
terms  the  exact  limit,  that  a  merely  circumstantial  dif- 
ference excludes  from  the  exception.  This  principle 
appears  to  be  convenience,  amounting  almost  to  neces- 
sity. Hence,  the  retainer  by  parol  of  an  inferior  ser- 
vant, authorizing  another  to  drive  away  cattle,  damage 
feasant,  to  make  a  distress  or  the  like,  the  doing  of  acts 
very  frequently  recurring,  or  too  insignificant  r^o^-o-i 
*to  be  worth  the  trouble  of  affixing  the  com- 

{k)  8  Q.  B.  (55  E.  C.  L.  E.)  326. 


'  Mr.  Morawetz  (Private  Corporations,  §  167)  says:  "It  [the  rule  that  a 
seal  is  essential]  was  never  rigorously  applied  in  all  cases  (which  shows  that 
it  did  not  result  from  the  nature  of  a  corporation) ;  and  in  modern  times  the 
ancient  rule  has  been  wholly  discarded.  It  is  now  a  rule  well  settled  through- 
out the  United  States,  that  a  corporation  may  make  a  contract  without  the 
use  of  a  seal,  in  all  cases  in  which  this  may  be  done  by  an  individual ;  and  it 
is  equally  well  settled  that  an  agent  of  a  corporation  may  be  appointed  with- 
out the  use  of  a  seal,  whatever  may  be  the  purpose  of  the  agency.  The  Eng- 
lish Courts  have  held  more  firmly  to  the  time-honored  doctrine ;  but  even  in 
England  it  is  settled  law  that  a  private  corporation  established  for  purposes 
of  trade  or  traffic  has  implied  authority  to  make  any  contract  in  the  direct 
course  of  the  business  which  it  was  cliartered  to  carry  on,  without  the  use  of 
the  corporate  seal,  in  the  same  manner  as  an  individual."  He  cites  numer- 
ous authorities.     And  see  infra,  p.  *379,  note  1. 

393 


372  PARTIES    TO   CONTRACTS.  [lECT.  IX. 

Ttion  seal,  are  established  exceptions.  In  such  cases  the 
head  of  the  corporation  has  from  the  earliest  time  been 
considered  as  delegated  by  the  rest  to  act  for  them  {I). 
Much  illustration  as  to  these  acts  is  afforded  by  the  case 
of  Smith  V.  Cartwright,  decided  in  the  Exchequer 
Chamber  (m).  It  was  an  action  by  one  of  the  coal- 
meters  of  King's  Lynn,  for  disturbance  in  liis  office  of 
coal-meter,  in  the  exercise  of  which  he  claimed  the 
right  to  weigh  coals  brought  into  the  port,  and  to  take 
a  certain  fee  for  weighing  them ;  and  it  became  a  mate- 
rial question  whether  he  was  duly  appointed  meter  or 
not.  He  had  not  been  appointed  under  seal.  The 
Court  held,  that,  as  the  right  he  claimed  was  to  dis- 
charge certain  duties  in  regard  to  the  property  of  third 
persons  altogether  against  their  will,  and  to  demand  a 
fee  for  so  doing,  this  right  must  be  by  reason  of  his 
having  an  office,  and  not  being  a  mere  servant  of  the 
corporation,  and  consequently  his  appointment  must, 
in  order  to  be  valid,  be  under  the  seal  of  the  corpora- 
tion. Had  this  not  been  so,  but  if  the  corporation  had 
merely  claimed  a  right  to  measure  by  persons  appointed 
by  themselves,  such  persons  would  be  merely  servants, 
and  might  well  be  appointed  without  seal.  You  will 
also  see  an  enumeration  of  these  '-'acts  in  Com. 
'-  -^  Dig.  Franchises,  F.  13  (n).  They  are  treated 
by  the  Court  of  Common  Pleas,  in  the  great  case  of 
The  Fishmongers'  Company  v.  Robertson  (o),  as  so  well 
known  as  to  require  no  enumeration  in  the  judgment 
of  the  Court.  They  are  apparently  as  ancient  as  the 
doctrine  to  which  they  are  commonly  stated  to  be  ex- 
cjeptions.     They  do  not  depend  upon  any  one  principle, 


(/)  The  Mayor  of  Ludlow  v.  Charlton,  ante,  p.  *370. 

(m)  20  L.  J.  (Ex.)  401  ;  6  Ex.  927,  S.  0. 

(n)  See  Bro.  Abr.  Corp.  K. ;  and  in  Horn  v.  Ivy,  1  Vent.  47. 

(o)  5  M.  &  Gr.  (44  E.  C.  L.  R.)  192. 

394 


LECT.  IX.]  CORPORATIONS.  373 

other  than  that  of  convenience,  amounting  almost  to 
necessity,  which  belongs  to  them  in  their  very  nature,  and 
under  which  they  are  ranked  by  the  Court  of  Queen's 
Bench  in  Church  v.  Imperial  Gas  Light  Company  [p). 
There  is,  however,  a  distinction  between  matters  which 
do  and  matters  which  do  not  affect  any  interest  of  the 
corporation.  The  former  must  be  authorized  by  the 
corporate  seal.  Tlius,  they  must  appoint  a  bailiff"  by 
deed  for  entering  upon  lands  for  condition  broken,  in 
order  to  revest  their  estate ;  but  they  need  not  do  so 
where  the  bailiff"  is  only  to  distrain  for  rent  {q).  To 
this  rule  also,  the  convenience  of  the  world  has  occa- 
sioned some  other  exceptions ;  the  principle  of  which  is, 
that,  when  a  corporation  has  been  created  for  mei'cantile 
purposes,  it  is  ^allowed  to  enter  without  seal  into  p.:07j^-| 
certain  contracts,  which  are  usually  entered  into  ^  J 
without  seal  by  commercial  men.  Such  a  corporation 
for  instance  may  have  power  to  accept  bills  of  exchange, 
but  the  power  must  either  be  expressly  given  it,  e.  g., 
by  Act  of  Parliament,  or  must  be  necessarily  implied 
from  the  nature  of  the  business  in  which  the  corpora- 
tion is  engaged.  A  railway  company  incorporated  in 
the  usual  way  has  no  such  power  (r).  In  the  case  of 
Church  V.  The  Imperial  Gas  Light  Company  (s)  the 
defendants  were  empowered,  by  the  Act  incorporating 

(/))  6  A.  &  E.  (33  E.  C.  L.  R.)  846. 

(7)  Smith  V.  Birmingham  Gas  Co.,  1  A.  &  E.  (28  E.  C.  L.  R.)  526  ;  Parol  v. 
Moor,  Plow.  91  ;  Jenkins,  3rd  Cent,  case,  68,  See  Halli;.  Mayor,  &c.,  of  Swan- 
sea, 5  Q.  B.  (48  E.  C   L.  R)  526. 

(r)  Bateman  v.  Mid-Wales  Rail.  Co.,  L.  R.  1  C.  P.  499  ;  35  L.  J.  (C.  P.)  205 ; 
Broughton  v.  Manchester  Water  Works,  4  B.  &  Aid.  (6  E.  C.  L.  R.)  1.  See 
also  Smith's  Mer.  Law,  9th  ed.,  by  Dowdeswell,  pp.  81,  82.  As  to  the  power 
of  companies  incorporated  under  the  "  Companies  Act,  1862,"  to  accept  bills 
of  exchange,  see  ytost,  p.  *400. 

(s)  6  A.  &  E.  (33  E.  C.  L.  R.)  846 ;  R.  v.  Bigg,  3  P.  Wms.  419 ;  Beverley  v. 
Lincoln  Gas  Co.,  6  A.  &  E.  (33  E.  C.  L.  R.)  829 ;  Clarke  v.  The  Guardians  of 
the  Cuckfield  Union,  21  L.  J.  (Q.  B.)  349 ;  Nicholson  v.  Bradford  Union,  35  L. 
J.  (Q.  B.)  176 ;  L.  R.  1  Q.  B.  620. 

395 


374  PARTIES   TO   CONTRACTS.  [lECT.  IX. 

them,  to  make  gas,  and  to  sell  and  dispose  of  it  in  sucli 
manner  as  they  should  think  proper,  with  full  power 
to  supply  and  light  with  gas  the  shops,  houses,  streets, 
&G.,  in  the  places  mentioned.  The  statute  further 
enacted  that  the  directors  should  have  the  custody 
of  the  common  seal,  with  full  power  to  use  it  for 
the  affairs  and  concerns  of  the  company,  and  should 
have  power  to  direct  and  transact  the  affairs  and  busi- 
p.:.r,„.--i  I16SS  of  the  company,  as  well  in  laying  out  and 
•-  '^^  -"  ^disposing  of  money  for  the  purposes  of  the 
same,  as  in  contracting  for  and  purchasing  lands  and 
tenements,  materials,  goods  and  chattels  for  the  use  of 
the  company,  &c.,  and  selling  and  disposing  of  all 
lands,  &c.,  and  all  articles  produced  as  aforesaid.  The 
defendants  entered  into  a  simple  contract  with  the 
plaintiff,  to  supply  him  with  gas  at  a  certain  rate,  and 
the  Court  held  that  they  had  power  to  enter  into  this 
contract,  and  to  sue  in  assumpsit  for  the  price  of  the 
gas  supplied.  "  The  general  rule  of  law,"  said  the 
Court  in  delivering  its  judgment,  "  is  that  a  corporation 
contracts  under  its  common  seal ;  as  a  general  rule  it  is 
only  in  that  way  that  a  corporation  can  express  its  will, 
or  do  any  act.  Whenever  to  hold  the  rule  applicable 
would  occasion  a  great  inconvenience  or  tend  to  defeat 
the  very  object  for  which  the  corporation  was  created, 
tha  exception  has  prevailed.  On  the  same  principle 
stands  the  power  of  accepting  bills  of  exchange  and 
issuing  promissory  notes  by  companies  incorporated  for 
the  purposes  of  trade,  with  the  rights  and  liabilities 
consequent  thereon.  We  must  understand  this  com- 
pany to  have  been  incorporated  for  the  purpose  of  sup- 
plying individuals  willing  to  contract  with  them  for 
gas-light.  Such  contracts  are  of  almost  daily  occur- 
rence, and  to  hold  that  for  every  one  of  them,  of  the 
same  or  less  amount,  it  was  necessary  to  affix  the  com- 
396 


LECT.  IX.]  COKPOEATIONS.  375 

mon  seal,  would  be  so  seriously  to  impede  the  corpora- 
tion in  fulfilling  the  very  purpose  for  which  it  was 
created,  that  *we  think  we  are  bound  to  hold    r^^ojn-t 
tlie  case  fairly  brought  within  the  princijDle  of 
the  established  excej^^tions." 

Upon  similar  reasoning  where  the  Australian  Mail 
Steam  Navigation  Company  (which  was  constituted  a 
trading  corporation  by  charter  for  the  purpose  of  main- 
taining a  communication  by  steam  and  other  vessels  for 
carrying  passengers,  &c.,  between  Great  Britain  and 
Australia),  in  the  performance  and  for  the  more 
eifectual  prosecution  of  the  objects  of  their  charter,  and 
by  a  resolution  of  the  directors  duly  entered  into  as  re- 
quired by  the  charter,  made  a  parol  agreement  with 
the  plaintiff,  that  in  consideration  of  his  going  to  Sidney 
to  bring  home  one  of  their  ships  which  was  supposed  to 
be  unseaworthy  and  uninsurable,  they  would  pay  his 
passage  out  to  Sidney  and  allow  hitn  a  remuneration 
for  his  said  services ;  the  Court  of  Queen's  Bench  de- 
cided that  this  contract  being  entered  into  by  the  com- 
pany and  performed  by  the  plaintiff  for  the  express 
purpose  of  preserving  the  ship  and  maintaining  the 
communication  and  carriage  of  passengers,  &c.,  between 
Great  Britain  and  Australia,  the  company  were  liable 
to  pay  him  notwithstanding  that  the  contract  w^as  not 
under  seal  {I).  In  another  case  in  which  the  same 
company  were  the  plaintiffs,  and  in  which  they  had 
brought  by  parol  contract  of  the  defendants  a  quantity 
of  ale  '-'for  the  use  of  the  passengers  on  board  r-^nn^-i 
their  steam  vessel,  and  paid  the  defendants  for  ■-  -■ 
the  same,  but  the  ale  proved  unfit  for  use ;  the  Court 
of  Exchequer  held,  that  the  contract,  although  not 
under  seal,  yet  being  executed,  the   defendants  were 

•   (0  Henderson  v.  The  Australian  R.  M.  Steam  Nav.  Co.,  24  L.  J.  (Q.  B.) 
322;  5  E.  &  B.  (85  E.  C.  L.  R.)  409. 

397 


377  PARTIES   TO   CONTEACTS.  [lECT.  IX. 

liable  to  the  plaintiffs  in  damages  (u).  Again,  where  a 
company  incorj)orated  under  the  Companies  Act,  1862, 
for  the  working  of  collieries,  contracted,  but  not  under 
seal,  with  an  engineer  for  the  erection  of  a  pumj)ing 
engine  and  machinery  for  use  in  the  colliery,  and  paid 
him  part  of  the  price;  in  an  action  by  the  company 
against  the  engineer  for  a  breach  of  contract  in  refusing 
to  deliver  the  engine  and  machinery,  it  was  held  that  the 
action  was  maintainable  though  the  contract  was  not 
under  seal  (v). 

But  unless  the  nature  of  the  business  for  which  the 
corporation  was  created,  necessarily  implies  the  exist- 
ence of  these  powers  of  contracting  otherwise  than  by 
deed,  it  will  not  have  them.^     Thus  it  has  been  held  {w) 

(«)  The  Australian  R.  M.  Steam  Nav.  Co.  v.  Marzetti,  24  L.  J.  (Ex.)  273 ; 
11  Ex.  2--'8 ;  Renter  v.  Electric  Telegraph  Co.,  26  L.  J.  (Q.  B.)  46 ;  6  E.  &  B. 
^88  E.  C.  L.  R.)  341. 

(v)  South  of  Ireland  Colliery  Company  v.  Waddle,  L.  R.  3  C.  P.  463 ;  4  C. 
P.  617  (Ex.  Ch.)  S.  a,  37  L.  J.  (C.  P.)  211 ;  38  lb.  338.  See  however  now, 
Btat.  30  &  31  Vict.,  c.  131,  s.  37  {post,  p.  *399),  as  to  the  contracting  power  of 
companies  incorporated  under  the  Companies  Act,  1862. 

(w)  Gibson  v.  East  India  Co.,  5  Bing.  N.  C.  (35  E.  C.  L.  R.)  262. 

^  It  is  a  general  principle  that  a  corporation  has  no  power  to  enter  into  any 
contract,  not  within  the  scope  of  the  objects  for  which  it  has  been  chartered, 
and  it  has  been  held  that  even  where  it  has  received  and  enjoyed  the  con- 
sideration, it  may  in  a  suit  upon  the  contract  take  advantage  of  its  defect  of 
power.  In  such  cases,  however,  the  consideration  may  be  recovered  back  : 
Albert  r.  Savings  Bank  of  Baltimore,  1  Md.  Ch.  407  ;  Abbott  i-.  Bait.  &  R. 
Steam  Packet  Co.,  lb.  542 ;  Beers  v.  Plioenix  Glass  Co.,  14  Barb.  358.  Corpo- 
rations are  bound  to  follow  strictly  the  letter  of  the  charter,  and  can  exercise 
no  power  unless  granted  to  them  or  absolutely  necessary  to  carry  out  the 
power  so  granted :  Smith  v.  Morse,  2  Cal.  524 ;  Mechanics'  Savings  Bank  v. 
Meriden  Agency  Co.,  24  Conn.  159;  Berry  v.  Yates,  24  Barb.  199;  Cincin- 
nati R.  R  Co.  V.  Clarkson,  7  Ind.  595  ;  Morris  R.  R.  Co.  v.  Newark,  10  N.  J. 
Eq.  352 ;  Smith  i-.  Eureka  Flour  Mills,  6  Cal.  1  ;  Straus  v.  Eagle  Ins.  Co.,  5 
Ohio  St.  59;  Aurora  v.  West,  9  Ind.  74;  Madison  Plank  Road  Co.  «-.  Water- 
town  Co.,  5  Wis.  173;  Downing  v.  Mount  Washington  Co.,  40  N.  H.  230; 
Parish  v.  Wheeler,  22  N.  Y.  494  ;  Rock  River  Bank  v.  Sherwood,  10  Wis. 
230.  The  express  powers  of  a  corporation  must  be  exercised  in  the  manner 
pointed  out  by  the  statute,  but  the  powers  merely  incident  thereto  may  be 
exercised  by  its  officers  or  agents :  Smith  v.  Eureka  Flour  Mills,  6  Cal.  1  • 

398 


LECT.  IX.]  CORPORATIONS.  377 

that  when  the  East  India  Company  granted  a  retiring 
pension  to  a  military  officer  for  ^services  per-  r^qr-g-j 
formed  to  them  in  the  East  Indies,  but  did  not 
grant  it  under  their  common  seal,  the  grant  did  not  fall 
within  the  reason  or  principle  of  the  exception,  but 
must  be  governed  by  the  general  rule  of  law,  that  a 
corporation  cannot  be  sued  upon  a  contract,  unless 
under  seal.  It  is,  indeed,  obvious  that  the  grant  of  this 
pension  could  have  no  connexion  whatever  with  the 
condition  or  powers  of  the  company  as  a  trading  com- 
munity, and  consequently  that  it  is  not  within  the  ex- 
ception which  has  been  established  as  to  contracts  en- 
tered into  by  corporations  instituted  for  the  purposes  of 
trade  in  matters  relating  to  their  trade,  or  within  that 
respecting  matters  of  daily  occurrence  and  slight  im- 
portance, which  has  been  alluded  to.  And  where  the 
Governor  and  Company  of  Copper  Miners  {x)  entered 
into  a  parol  contract  with  a  person  to  supply  him  with 
a  large  quantity  of  iron  bars,  it  was  held,  that  as  there 
was  no  evidence  that  the  contract  proved  was  in  any 
way  auxiliary  to  the  trade  in  copper,  it  must  be  held 

(x)  The  Governor  and  Company  of  ('opper  Miners  of  England  v.  Fox,  16 
Q.  B.  (71  E.  C.  L.  E.)  229 ;  20  L.  J.  (Q.  B.)  174. 


Southern  Ins.  Co  v.  Lanier,  5  Fla.  110  ;  Holland  r.  San  Francisco,  7  Cal.  361 ; 
Coe  V.  Columbus  R.  R.  Co.,  10  Ohio  St.  372 ;  Merrick  v.  Burlington  Co.,  11 
Iowa,  74.  It  is  well  settled  that  a  corporation  may  without  special  authority 
make  a  note  or  draft  or  accept  a  draft  for  a  debt  contracted  in  its  legitimate 
business :  Partridge  v.  Badger,  25  Barb.  146 ;  Hamilton  v.  Newcastle  R.  R. 
Co.,  9  Ind.  359;  Lucas  v.  Pitney,  27  N.  J.  221  ;  Frye  v.  Tucker,  24  111.  180; 
Rockwell  V.  Elkhorn  Bank,  13  Wis.  653;  Goodrich  v.  Reynolds,  31  111.  490. 
The  burden  of  proof  is  upon  parties  impeaching  the  acts  of  corporations  to 
show  that  such  acts  are  not  within  its  corporate  powers  :  Chautauqua  Bank  v. 
Risley,  19  N.  Y.  369.  A  corporation  chartered  in  one  State  may  make  and 
enforce  in  another  State  contracts  allowed  by  its  charter,  and  not  in  violation 
of  the  public  policy  or  laws  of  the  latter  State :  Bard  v.  Poole,  12  N.  Y.  495; 
Wright  V.  Bundy,  11  Ind.  398.  But  see  Merrick  v.  Brainard,  38  Barb. 
574.— s. 

399 


378  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

not  a  contract  entered  into  for  the  purpose  of  carrying 
on  the  trading  object  for  which  the  pluintifls  were  in- 
corporated, and  did  not  bind  them ;  and  consequently, 
as  there  was  no  consideration  for  the  defendant's  prom- 
ise, that   he  was    not   bound   to   perform  it.     In  like 
r*^7Q"l    ^^^^^^6^%  where  the  London  Dock  Company,  a 
•''corporation  instituted  for  the  purpose  of  carry- 
ing on  a  particular  trade,  entered  into  a  contract  for  the 
cleansing  and  removing  the  filth  and  dirt  accumulating 
in  their  docks  and  basins ;  the  Court  held  that  such  a 
contract  ought  to  have  been  under  the  corporation  seal, 
as  it  was  not  a  contract  of  a  mercantile  nature ;  nor  was 
it  with   a  customer  of  the  Company,  nor  was  it  of  a 
character  which  created  an  impossibility  that  it  should 
be  under  seal   {y).     But  where  a  trading  company  is 
created  by  charter,  while  acting  within  the  scope  of  the 
charter,  it   may  enter   into   the   commercial   contracts 
usual  in  the  trade  which  the  company  is  to  carry  on,  in 
the  usual  manner  [z).     Some  acts  of  trifling  importance 
which  every  corporation   may  do  without  deed,  have 
been  already  mentioned.^ 

{y)  London  Dock  Company  v.  Sinnott,  27  L.  J,  (Q.  B.)  129 ;  8  E.  «&  B.  (92 
E.  C.  L.  R.)  347. 

{z)  Copper  Miners'  Co.  v.  Fox,  supra. 


'  The  excepted  cases  referred  to  in  the  decision  in  The  East  London  "Water- 
works Co.  V.  Bailey,  were,  1,  where  the  contract  is  executed ;  2,  where  the  acts 
done  are  of  daily  necessity,  and  too  insignificant  for  the  trouble  of  the  seal ; 
3,  where  tlie  corporation  has  a  head,  as  a  mayor  or  a  dean,  who  may  give  com- 
mands ;  4,  where  the  act  should  from  necessity  be  done  immediately ;  and  5, 
where  it  is  essential  to  a  moneyed  corporation,  like  the  Bank  of  England,  that 
it  should  have  the  power  of  issuing  bills  and  notes.  But  the  distinction  be- 
tween executed  and  executory  contracts,  which  was  the  foundation  of  the  first 
of  these  exceptions,  was  directly  overruled  in  Church  v.  The  Imperial  Gas  Co., 
6  A.  &  E.  (33  E.  C.  L.  R.)  846.  That  case,  which  decided  that  a  corporation 
might  maintain  assumpsit  for  breach  of  an  unsealed  contract  to  accept  gas  from 
year  to  year  at  so  much  per  annum,  was  rested  on  the  second  and  fifth  of  the 
above  exceptions,  the  contract  being  one  of  daily  occurrence,  and  almost  es- 
sential ('■  convenience  amounting  almost  to  necessity  "),  for  the  purpose  of  the 

400 


LECT.  IX.]  COEPORATTONS.  379 

Contracts,  although  for  things  necessary,  cannot  be 
enforced  against  "urban  authorities"  created  by  the 
Public  Health  Act,  1875  (38  &  39  Vict.,  c.  55),  if  for 
an  amount  exceeding  £50,  unless  under  their  common 
seal.  These  are  corporations  created  for  public  pur- 
poses, not  trading  or  commercial  corporations  having 
gain  for  their  object ;  and  under  section  174  of  the  above 
Act  "  every  contract  made  by  an  urban  authority 
whereof  the  value  or  amount  exceeds  £50,  shall  be  in 


corporation ;  and  all  the  recent  cases  in  England  have  been  decided  upon  the 
same  grounds :  Beverly  v.  The  Lincoln's  Inn  Gas  Light  and  Coke  Co  ,  6  A.  & 
E.  (33  E.  C.  L,  R.)  829 ;  Paine  v.  Strand  Union,  8  Q  B.  (55  E.  C.  L.  R.)  326  ; 
Mayor  of  Ludlow  v.  Charlton,  6  M.  &  VV.  824;  Lamprell  t>.  The  Billericay 
Union,  3  Exch.  306  ;  Diggle  v.  London  and  Blackwall  Railway  Co.,  5  lb.  442  ; 
Finlay  v.  Bristol  and  Exeter  Railway  Co.,  9  Eng.  Law  &  Eq.  R.  483. 

On  this  side  of  the  Atlantic,  however,  a  much  more  relaxed  rule  prevails, 
and  it  has  long  been  settled  that  there  is  no  distinction  between  the  contracts 
of  a  corporation  and  a  natural  person,  whether  they  are  express  or  implied, 
either  from  acceptance  of  an  executed  consideration  or  from  the  ratification 
of  acts  done  on  its  behalf  by  its  members  or  others  :  Bank  U.  S.  v.  Dandridge, 
12  Wheat.  64;  Proprietors  v.  Gordon,  1  Pick.  297  ;  Ross  v.  City  of  Madison,  1 
Smith,  98 ;  Gassett  v.  Andover,  21  Vt.  342  ;  and  see  many  other  cases  collected 
in  Angell  and  Ames  on  Corporations,  211,  212 ;  2  Kent's  Com.  290  (whose  state- 
ment of  the  law  is  referred  to  by  Patteson,  J.,  in  Beverly  v.  Gas  Co.,  supra), 
and  the  note  to  Mayor  v.  Charlton,  6  M.  &  W.  815,  Am.  ed. — r. 

The  acts  of  a  corporation,  evidenced  by  a  vote,  written  or  unwritten,  are  as 
completely  binding  upon  it,  and  as  full  authority  to  its  agents,  as  the  most 
solemn  acts  done  under  the  corporate  seal ;  and  promises  and  engagements  may 
as  well  be  implied  from  its  acts  and  the  acts  of  its  agents  as  if  it  were  an  in- 
dividual :  Elysville  Manufacturing  Co.  v.  Okisko  Co.,  1  Md.  Ch.  392 ;  Conro  v. 
The  Port  Henry  Iron  Co.,  12  Barb.  27  ;  Ross  v.  Madison,  1  Ind.  281.  Prom- 
ises are  implied  against  corporations  in  the  same  cases  as  against  natural  per- 
sons :  San  Antonio  v.  Lewis,  9  Tex.  69.  The  appointment  of  an  agent  may  be 
implied:  Planters'  Bank  v.  Bivingsville  Cotton  Co.,  10  Rich.  95;  Alabama  R. 
R.  Co.  r.  Kidd,  29  Ala.  221 ;  Hamilton  v.  Newcastle  R.  R.  Co.,  9  Ind.  359 ; 
Buckley  v.  Briggs,  30  Mo.  452 ;  Brown  v.  Donnell,  49  Me.  421 ;  Allen  v.  Citi 
zens'  Co.,  22  Cal.  28.  The  vote  of  the  directors  of  a  bank  to  accept  one  se- 
curity in  the  place  of  another  may  be  proved  by  parol,  when  uo  record  is  made 
of  it:  Ryan  v.  Dunlap,  17  111.  40;  Southern  Hotel  Co.  v.  Newman,  30  V'o.  118, 
As  against  the  minority,  a  majority  of  the  stockholders  or  board  of  directors 
of  a  corporation  cannot  legally  deviate  from  the  undertaking  which  was 
originally  contemplated  between  the  parties :  Kean  v.  Johnson,  9  N.  J  Ea. 
401.— 8.  ' 

26  401 


379  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

writing,  and  sealed  with  *tlie  common  seal  of 
L  -■  such  authority "  (a).  This  enactment  is  obli- 
gatory and  not  merely  directory,  and  applies  to  an  ex- 
ecuted contract  of  which  the  urban  authority  has  had 
the  full  benefit  and  which  has  been  effected  by  its  agent 
duly  authorized  under  the  common  seal  of  the  author- 
ity {b).  It  has  also  been  held  that  as  the  words  "  every 
contract  ....  whereof  the  value  or  amount  ex- 
ceeds £50  "  are  in  the  present  tense,  the  w^ords  "  at  the 
time  of  making  t,"  must  be  read  into  the  enactment. 
The  contract,  therefore,  in  order  to  be  rendered  invalid 
must  be  one  which  exceeds  £50  at  the  time  it  is  entered 
upon,  not  one  which  may  possibly  exceed  £50  at  some 
future  time.  Thus,  where  on  the  occurrence  of  an  out- 
break of  fever,  a  medical  man  made  a  verbal  agreement 
with  an  urban  sanitary  authority  to  attend  the  patients 
who  were  in  tents  at  the  rate  of  5s.  Sd.  per  tent  per  day, 
and  he  attended  until  the  amount  due  w^as  nearl}'  £100, 
it  was  held  that  the  urban  sanitary  autliority  was  liable 
on  this  contract,  inasmuch  as  at  the  time  of  entering 

^    into  it  the  parties  had  not  ^ascertained  that  it 

r  3811 

L        -•    would  necessarily  exceed  £50  (c). 

There  is  an  important  class  of  parties  to  contracts, 

most  of  which  at  the  present  day  are  of  the  nature  of 

(o)  Sect.  85  of  the  now  repealed  Public  Health  Act,  1848  (11  &  12  Vict.,  c. 
63),  contained  a  similar  provision  as  to  "local  boards,"  where  the  value  or 
amount  exceeded  £10. 

(6)  Young  r.  Corporation  of  Leamington,  8  App.  Cas.  517 ;  52  L.  J.  (Q.  B.) 
713  (H.  L.),  affirming  S.  C.  8  Q.  B.  D.  579 ;  51  L.  J.  (Q.  B.)  292,  and  following 
Hunt  V.  Wimbledon  Local  Board,  3  C.  P.  D.  208,  47  L.  J.  (C.  P.)  540 ;  4  C.  P. 
D.  48 ;  48  L.  J.  (C.  P.)  207. 

(c)  Eaton  v.  Basker,  7  Q.  B.  D.  529  (C.  A.) ;  50  L.  J.  (Q.  B.)  444  ;  reversing 
on  this  point  S.  C.  6  Q.  B.  D.  201  ;  50  L.  J.  (Q.  B.)  194.  In  Att.-Gen.  v.  Gas- 
kill,  22  Ch.  Div.  537;  52  L.  J.  (Ch.)  659,  Bacon,  V.-C,  held  that  an  agree- 
ment to  settle  an  action  brought  by  a  local  board  to  restrain  defendant  from 
obstructing  a  foot-path,  on  the  terms  that  defendant  should  pay  the  costs 
the  board,  was  not  within  the  above  enactment,  and  might  be  enforced,  though] 
not  under  seal,  and  although  the  costs  amounted  to  more  than  £50. 

402 


LECT.  IX.]  COMPANIES.  381 

trading  corporations,  which  ought  not  to  be  passed  over 
without  mention,  though  our  consideration  of  them 
must  be  necessarily  brief,  I  mean  public  or  joint  stock 
companies.  Nearly  all  of  these  are  of  recent  origin, 
most  of  them  very  recent.  Some  of  these  companies 
are  incorporated,  and  others  not,  and  some  important 
attributes  exist  peculiar  to  different  stages  of  their 
growth,  from  a  mere  party  of  individuals  combining  to 
promote  the  formation  of  a  company,  until  they  have 
achieved  their  object  by  effecting  its  incorporation.  All 
these  companies  are  created  for  some  definite  and  pre- 
scribed object,  and  have  already  been  slightly  men- 
tioned in  treating  of  the  power  of  corporations  to  con- 
tract. 

Previously  to  the  passing  of  the  statutes  hereafter 
mentioned,  so  great  a  number  of  joint  stock  rrijooo-i 
^companies  had  been  established,  and  so  many 
more  were  projected,  each  striving  to  attain  its  object 
by  means  of  its  own,  none  having  any  regard  to  the 
provisions  of  the  law  in  analogous  cases,  and  many  vio- 
lating them,  that  the  greatest  confusion  and  uncertainty 
were  introduced  into  their  transactions,  and  lamentable 
frauds  and  oppressions  were  committed.  Several  Acts 
of  Parliament  were  passed  remedying  some  of  these 
evils,  but  being  found  insufficient,  the  Legislature  passed 
some  general  enactments,  of  which  the  most  important 
for  the  present  purpose  are,  the  Act  for  the  Pegistra- 
tion.  Incorporation,  and  Regulation  of  Joint  Stock 
Companies,  7  &  8  Vict.,  c.  110,  which  came  into  opera- 
tion on  the  1st  of  November,  1844;  the  Companies 
Clauses  Consolidation  Act,  1845,  8  Vict.,  c.  16 ;  the 
Lands  Clauses  Consolidation  Act,  1845,  8  Vict.,  c.  18 ; 
and  the  Railway  Clauses  Consolidation  Act,  1845,  8 
Vict.,  c.  20.  The  statute  7  &  8  Vict.,  c.  110,  was  indeed 
repealed  by  19  &  20  Vict.,  c.  47 ;  but  as  to  insurance 

403 


382  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

companies  registered  under  it,  and  as  to  new  companies 
for  insurance,  it  was  revived  by  20  &  21  Vict.,  c.  80. 
The  statute  19  &  20  Vict.,  c.  47,  now  repealed,  applied 
to  companies  the  principle  of  limited  liability.  Exist- 
ing companies  might  come  under  its  operation,  and 
joint  stock  banks  established  since  May  5,  1844,  were 
subjected  to  it  by  20  &  21  Vict.,  c.  49.  There  was  also 
a  statute  regulating   joint   stock    banking  companies, 

r*SSS1  ''^  ^^^'  "^^■'  ^*  '^^'  ^y  which,  and  by  7  &  8 
Vict.,  c.  113,  that  important  class  of  public 
companies  was  governed.  Finally,  there  is  "  Tlie  Com- 
panies Act,  1862"  25  &  26  Vict.,  c.  89,  which  has 
repealed  most  of  the  former  Acts,  and  has  established  a 
system  which  varies  much  from  the  ordinary  rules  of  law, 
and  which  can  be  learnt  only  by  a  careful  study  of  the 
statute  itself,  and  of  the  decisions  of  the  Courts  upon 
the  questions  which  have  occurred  in  applying  it  to 
jDractice.  This  Act  has  since  been  amended  by  the  fol- 
lowing Acts,  viz. :— 30  &  31  Vict.,  c.  47,  c.  131  (the 
Companies  Acts,  1867) ;  33  &  34  Vict.,  c.  104  (the 
Joint  Stock  Companies  Arrangement  Act,  1 870) ;  40  & 
41  Vict.,  c.  26  (Companies  Act,  1877) ;  42  &  43  Vict., 
c.  76  (Companies  Act,  1879) ;  43  Vict.,  c.  19  (Com- 
panies Act,  1880) ;  46  &  47  Vict.,  c.  28  (Companies 
Act,  1883). 

It  will  be  necessary  to  advert  to  some  extent  to  the 
princi23les  of  the  decisions  pronounced  before  "  The 
Companies  Act,  1862,"  for  the  sake  of  explaining  the 
law  applicable  to  such  companies  as  do  not  come  within 
its  enactments,  though  it  is  evident  that  for  many  com- 
panies established  before  the  passing  of  that  Act,  the 
law  IS  different  from  that  by  which  companies  since 
established  are  regulated. 

"  A  joint  stock  company  i-s  a  partnership  consisting 
for  the  most  part  of  a  very  large  number  of  members. 
404 


LECT.  IX.]  COMPANIES.  383 

whose  rights  and  liabilities  would  be  *precisely  r*oo4-| 
the  same  as  those  of  any  other  partners,  did  not 
their  multitude  oblige  them  to  adopt  certain  peculiar 
regulations  for  the  government  of  the  concern,  which 
are  ordinarily  contained  in  an  instrument  called  a  deed 
of  settlement.  Such  is  a  joint  stock  company,  the  con- 
duct of  whose  affairs  has  not  been  affected  by  the  gen- 
eral enactments,  which  have  been  mentioned.  Such 
bodies  still  exist,  but  frequently  the  impossibility  or 
great  inconvenience  of  carrying  on  their  business  upon 
such  a  footing  has  induced  them  to  add  to  the  deed  of 
settlement  an  Act  of  Parliament  passed  expressly  for 
their  own  purj)oses"  (d). 

It  is  common,  as  you  are  no  doubt  aw^are,  to  com- 
panies generally,  that  the  joint  stock  or  capital  is  di- 
vided into  equal  parts,  called  shares,  the  number  of 
which  belonging  to  any  member  ascertains  the  amount 
which  he  has  contributed  to  that  stock  or  capital,  and 
his  consequent  interest  in  the  undertaking.  The  mem- 
bers or  shareholders  delegate  all  the  ordinary  business 
of  the  company  to  certain  of  its  members,  in  whom 
they  confide,  and  who  are  usually  called  directors,  but 
reserve  to  themselves  the  right  to  interfere  on  specified 
occasions,  together  with  a  general  control  and  sui^erin- 
tendence. 

It  is  also  common  to  companies  generally  that,  in  all 
cases  which  are  not  regulated  by  the  deed  of  settlement 
and  the  private,  or  as  it  is  called,  special  *Act,  r:::oo;:-j 
or  by  one  or  other  of  the  general  statutes  we 
have  mentioned,  the  common  law  prevails,  and  the 
rules  apply  which  would  apply  to  an  ordinary  partner- 
ship {e)  ;  and,  on  the  other  hand,  the  parties,  having 

{d)  Smith's  Mercantile  Law,  6th  ed.,  by  Dowdeswell,  p.  59 ;  and  see  p.  ^6, 
9th  ed. 

(e)  Holmes  v.  Higgins,  I  B.  &  C.  (8  E.  C.  L.  R.)  74 ;  Wilson  v.  Curzon,  15 
M.  &  W.  532. 

405 


385  PARTIES   TO    CONTRACTS.  [lECT.  IX. 

exchanged  their  mutual  rights  at  common  law  for  those 
stipulated  for  in  their  deed,  are  bound  by  the  latter, 
and  cannot,  as  a  general  rule,  act  otherwise  than  in  the  I 
stipulated  manner.     These  results  have  been  made  very 
clear  by  the  judgment  of  the  Court  of  Exchequer,  in 
Bosanquet  v.  Shortridge  (/),  in  which  case  the  deed  of 
settlement  had  provided  that  no  person  should  be  regis- 
tered as  a  shareholder  without  the  consent  of  the  board 
of  directors ;  and  it  was  endeavoured  to  be  shown  that 
the  defendant  had  ceased  to  be  a  shareholder,  having 
actually  sold  his  shares  to  another,  although  the  transfer 
was  not  with  the  consent  of  the  board  of  directors.    "It 
is  necessary,"  said  the  Court,  "  that  Courts  of  Justice 
should  act  on  general  rules,  without  regard  to  the  hard- 
ship which  in  particular  cases  may  result  from  their 
application.     This  is  the  case  of  a  joint  stock  company 
regulated  by  deed.     All  persons  executing  the  deed  are 
bound  by  whatever  is  done  in  pursuance  of  its  provi- 
sions, but  they  are  bound  no  further.     The  original 
body  of  shareholders  agreed   to  trade  in   partnership, 
r^^Sfil    ^^^   Hhej  farther  agreed  that,  by  a  certain 
stipulated  mode,   any  one  of  this  body  might 
transfer  his  share  to  another  to  be  substituted  in  his- 
place.     But  unless  the  steps  pointed  out  by  the  deed 
for  making  such  transfer  have  been  duly  taken,  the 
original  body  of  shareholders  remain  partners,  accord- 
ins:  to  the  terms  of  their  deed  of  settlement.    If,  indeed, 
a  case  could  be  conceived  where  all  the  shareholders,  at 
a  particular  time,  had  assented  to  a  mode  of  transfer 
different  from   that   stipulated  for  in  the   deed,   they 
might  be  bound  by  what  they  had  so  agreed  to.     But 
such  a  state  of  things  could  hardly  happen  to  a  joint 
stock  company  like  that  in  which  the  defendant  was  a 

(/)  4  Exch.  699 ;  22  L.  J.  (Ch.)  49;  Kirk  v.  Bell,  16  Q.  B.  (71  E.  C.  L.  K.) 
290 ;  Watson  v.  Bales,  26  L.  J.  (Ch.)  361. 
406 


LECT.  IX.]  COMPANIES.  386 

member;  and  certainly  no  universal  consent  can  be 
taken  to  have  existed  here."  The  defendant  was  held 
to  be  still  a  member. 

The  above  case  of  Bosanquet  v.  Shortridge,  illustrates 
a  great  inconvenience  felt  by  a  joint  stock  company 
established  by  deed,  viz.,  that  no  member  can  transfer 
his  share  without  the  consent  of  the  rest ;  for  such  a 
company  being,  in  most  particulars,  an  ordinary  part- 
nership, the  consent  of  each  partner  is  necessary  to  the 
introduction  of  a  new  one ;  although  it  has  been  con- 
sidered, that  where  the  nature  of  the  company  was  such 
that  the  members  could  not  have  intended  that  there 
should  be  no  change  in  their  body  without  their  con- 
sent, such  a  consent  was  not  necessary  (ff).  Thus,  great 
*doubts  and  difficulties  and  disputes  have  un-  r*qQ7-i 
avoidably  arisen  in  endeavouring  to  act  with- 
out such  consent.  And  in  all  ordinary  cases  the  mem- 
bers have  no  peculiar  rights  or  liabilities,  but,  as  in 
ordinary  partnership,  are  parties  to  all  the  contracts  of 
the  company,  entitled  to  the  benefit  of  them,  and  re- 
sponsible for  their  non-performance.  One  of  the 
objects,  however,  of  the  general  enactments  referred 
to  (A),  or  at  all  events  of  most  of  them,  is  to  prescribe 
the  modes  in  -which,  under  the  operation  of  those 
statutes,  such  shares  may  be  granted  by  the  company, 
and  transferred  from  holder  to  holder ;  and  various 
modes  for  attaining  these  purposes  are  prescribed  in  the 
particular  Acts  regulating  many  of  the  companies  which 
were  established  before  those  enactments. 

It  may  be  worth  while  to  mention  here  that  shares 
in  a  joint  stock  company,  although  it  be  seised  of  land 
^nd  possessed  of  goods  as  well  as  of  the  property  in 

(g)  Vox  V.  Clifton,  9  Bing.  (23  E.  C.  L.  R.)  119;  Waterford  &  DiibUn  Ry 
Co.  V.  Pidcock,  22  L.  J.  (Ex.)  146  ;  8  Ex.  279. 
(A)  Ante,  p.  *382. 

407 


387  PARTIES    TO    CONTRACTS.  [lECT.  IX 

wliicli  it  commonly  deals,  do  not  full  witliiu  the  4tli 
section  of  the  Statute  of  Frauds  as  an  interest  in  land, 
or  within  the  17th  section  as  goods,  wares,  or  merchan- 
dise (^)  ;^  but  in  the  absence  of  any  enactment  making 
them  the  one  or  the  other,  are  personal  property,  and 
mere  choses  in  action,  and  consequently  are  transferable 
by  parol  {k). 

r*-^HS1  ^^^  ^^^^  approbation  of  the  directors  be  re- 
quired as  a  preliminary  to  the  transfer,  it  must 
of  course  be  procured  (/),  and  that  by  the  vendor,  who 
must  do  everything  necessary  to  vest  the  property  in 
the  purchaser. (m),  although  it  is  generally  for  the  pur- 
chaser to  jDrepare  and  tender  the  conveyance  {n).  And. 
therefore,  when  the  shares  are  by  the  provisions  of  an 
Act  of  Parliament  transferable  by  deed  only,  the  pur- 
chaser must  tender  a  deed  to  the  seller  for  execution 
before  he  can  sue  for  not  transferring  them ;  and  a 
sealed  instrument  of  transfer,  having  the  name  of  the 
vendee  in  blank  at  the  time  when  it  is  sealed  and  deliv- 
ered, is  invalid,  not  being  a  legal  deed  (o).^ 

When  a  person  has  become  a  member  of  a  joint  stock 
company  formed  under  a  deed  of  settlement,  he  is,  in 
all  ordinary  cases,  unless  exempted  by  the  private  or 

(i)  Humble  v.  Mitchell,  11  A.  &  E.  (39  E.  C.  L.  E.)  205 ;  Tempest  i;.  Kilner, 
3  C.  B.  (54  E.  C.  L.  E.)  249  ;  Bowlby  v.  Bell,  lb.  284 ;  ante,  p.  *142. 
{k)  Hibblewhite  v.  M'Morine,  6  M.  &  W.  214. 
(l)  Bosanquet  v.  Shortridge,  20  L.  J.  (Ex.)  57 ;  4  Exch.  699,  S.  0. 
(m)  lb. ;  Wilkinson  v.  Lloyd,  7  Q.  B.  (53  E.  C.  L.  E.)  27. 
(n)  Stephens  v.  De  Medina,  4Q.  B.  (45  E.G.  L.  E.)  422 
(o'\  Hibblewhite  v.  M'Morine,  6  M.  &  W.  200 


^In  some  American  cases,  however,  a  contrary  opinion  has  been  maintained: 
Tisdale  v.  Harris,  20  Pick.  13  ;  Boardman  v.  Cutter,  128  Mass.  390;  Brownson 
V.  Chapman,  63  N.  Y.  625  (the  New  York  statute,  however,  covers  ''things  in 
action"  and  is  therefore  broader  than  the  English:  Tomlinson  v.  Miller,  7 
Abb.  Pr.  N.  S.  368);  Pray  v.  Mitchell,  60  Me.  434;  Mayer  v.  Child,  47  Cal. 
144;  Fine  v.  Hornby,  2  Mo.  App.  64;  Kauffman  v.  Harstock,  31  Iowa,  4*^3  • 
Southern  Ins.  Co.  v.  Cole,  4  Fla.  378  ;  Vawter  v.  Griffin,  40  Ind.  601. 

'  See  ante,  p.  *6,  note  2. 
408 


LECT.  IX.]  COMPANIES.  388 

general  statute,  entitled  to  the  benefits  of  all  its  contracts, 
and  responsible  for  the  engagements  of  the  company 
made  by  the  agents  of  the  concern  in  order  to  carry  out 
its  purposes  (p).  But  in  order  to  charge  the  company 
or  any  member  upon  a  contract,  it  must  be  proved  to 
have  been  made  by  persons  having  authority  from  all 
the  '-'shareholders  to  bind  them  by  such  a  con-  p-.^QQ-i 
tract ;  and  this  may  be  done  by  proving  that  '-  -' 
it  was  sanctioned  by  the  persons  authorized  by  the  deed 
of  the  company  to  conduct  its  affiiirs  {q).  But  the 
claimant  is  not  confined  to  the  deed  for  proof  of 
authority.  He  may  show  in  any  way  that  the  whole 
of  the  shareholders  have  directly  or  indirectly  given 
authority  to  those  making  the  contract  to  bind  them ; 
but  to  show  merely  that  some  of  the  directors  have 
ordered  or  approved  of  the  contract  is  not  sufficient  with- 
out also  showing,  that,  by  the  deed  or  otherwise,  they 
were  authorized  so  to  do.  Therefore,  where  the  deed 
appointed  eleven  directors,  and  declared  five  to  be  a 
quorum,  the  company  was  held  not  bound  by  a  con- 
tract made  at  a  board  where  three  only  were  present : 
and  this,  although  the  company  was  completely  regis- 
tered under  7  &  8  Vict.,  c.  110  (q).  And,  on  the  other 
hand,  where  a  manufiicturing  company  had  apj^ointed 
a  manager  to  superintend  and  transact  its  manufactur- 
ing business,  but  the  general  business  was  to  be  trans- 
acted by  a  board  of  directors,  who  had  power  to  appoint 
officers  and  delegate  their  authority,  and  goods  for  the 
manufacture  had  been  ordered  by  the  manager,  the  chair- 
man, the  deputy-chairman,  and  the  secretary,  and  were 
*used  for  the  company's  purposes;  the  Court  p;:oQrv-i 
of  Common  Pleas  considered,   that,  although, 

(p)  Harvey  v.  Kay,  9  B.  &  C.  (17  E.  C.  L.  R.)  356. 

(q)  Ridley  v.  Plymouth  Baking  Co.,  17  L.  J.  (Ex.)  252;  2  Ex.  711,  S.  C. 
See  Howbeach  Coal  Co.  r.  Teague,  5  H.  &  N.  151 ;  29  L.  J.  (Ex.)  137  ;  D'Arcy 
V.  Taraar,  &c..  Rail.  Co.,  L.  R.  2  Ex.  158 ;  36  L.  J.  (Ex.)  37. 

409 


390  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

with  the  exception  of  the  manager,  none  of  these  officers 
had  authority  to  give  such  orders,  and  although  the 
directors  did  not  expressly  adopt  them,  yet,  as  they 
knew  the  goods  so  ordered  had  been  received  upon  the 
premises  of  the  company,  and  used  for  the  purposes  of 
its  trade,  the  company  was  liable  (7-). 

It  will  probably  appear  quite  clear  from  what  has 
been  said  before,  and  if  not,  it  is  sufficiently  so  from  the 
very  nature  of  the  thing,  that  the  contracts  to  which  a 
member  of  a  joint  stock  company  becomes  liable,  be- 
cause they  are  made  by  the  agents  of  the  company  or 
certain  of  its  members,  must  be  contracts  either  ex- 
pressly authorized  by  him,  or  appropriate  in  order  to 
carry  out  the  purposes  for  which  the  company  was 
formed.  Thus,  in  the  celebrated  case  of  Dickenson  v 
Valpy  (s),  which  was  an  action  on  a  bill  of  exchange, 
purporting  to  be  drawn  and  accepted  by  a  mining  com- 
pany, wherein  the  plaintiff,  an  endorsee  for  value, 
sought  to  charge  the  defendant  as  a  member  of  that 
company,  the  Court  of  King's  Bench  held  that,  assum- 
ing the  defendant  to  be  a  member  of  that  company,  it 
was  incumbent  on  the  plaintiff  to  prove  that  the 
directors  of  the  company  had  authority  to  bind  the 
P^oQi-|  other  members  by  drawing  and  ^accepting  bills 
of  exchange ;  and  that,  the  plaintiff  not  hav- 
ing produced  the  deed  of  co-partnership,  nor  given  any 
evidence  to  show  that  it  was  necessary  for  the  purpose 
of  carrying  on  the  business  of  a  mining  company,  or 
that  it  was  usual  for  them  to  draw  or  accept  bills  of 
exchange,  there  was  no  evidence  of  such  authority  to 
draw  or  accept  them.  "  There  was  not  any  evidence," 
said     Parke,   J.    (afterwards    Lord   Wensleydale) ,    "to 

(r)  Smith  V.  Hull  Glass  Co.,  21  L.  J.  (C.  P.)  106 ;  11  C.  B.  (73  E.  C.  L.  E.) 
897. 

(«)  10  B.  &  C.  (21  E.  C.  L.  E.)  128. 
410 


LECT.  TX.]  COMPANIES.  391 

prove  an  authority  of  the  parties  in  this  concern  to 
draw  such  a  bill  of  exchange  as  this.  I  very  much 
doubt  whether  there  is  any  authority  in  mining  com- 
panies, arising  by  implication  from  the  nature  of  their 
dealings,  to  draw  or  accept  bills  of  exchange ;  and  it  is 
to  be  observed,  that  there  was  no  joroof  of  any  usage  to 
do  this  in  such  companies.  The  argument  would  go  to 
this,  that  all  persons  who  deal  in  the  produce  of  the 
land,  which  they  jointly  occupy,  because  they  might 
sell  that  produce  at  a  distance,  would  have  an  implied 
power  given  to  each  other  to  draw  bills  of  exchange 
for  the  purpose  of  receiving  payment  for  it ;  if  the 
argument  was  valid  it  would  show  that  farmers  acting 
in  partnership,  as  well  as  miners,  would  have,  as  inci- 
dental to  the  relation  of  partners,  an  authority  to  draw 
bills  of  exchange  upon  the  persons  to  whom  the  pro- 
duce of  the  land  was  sold ;  there  is,  however,  no  neces- 
sity to  decide  that  point,  because  there  is  no  ground,  at 
all  events,  to  say  that  mining  partners  have  an  implied 
authority  from  one  another,  arising  from  the  nature  of 
*their  business,  to  draw  such  a  bill  of  exchange  r^iqqo-i 
as  this,  for,  upon  the  face  of  it,  this  is  a  bill 
drawn  by  the  company  upon  themselves,  and  though  it 
is  in  form  treated  as  a  bill  of  exchange,  it  is  in  sub- 
stance only  a  promissory  note ;  and  the  effect  of  saying 
that  one  member  of  a  company  like  this  can  draw  such 
bills  or  notes,  would  be,  that  each  of  the  partners  in  the 
concern  would  have  the  power  of  pledging  the  others." 
Still  more  general  was  the  language  of  Tindal,  C.  J., 
in  delivering  the  judgment  of  the  Court  of  Common 
Pleas  in  the  case  of  Bramah  v.  Roberts  {t).  In  that 
case  a  bill  had  been  drawn  by  one  of  the  directors  of 
a  gas  comj)any  on  himself  and  the  other  directors,  which 
was  accepted  by  the  chairman  for  himself  and  other 

(0  3  Bing.  "N.  C.  (32  E.  C.  L.  R.")  963. 

411 


392  PARTIES    TO    CONTRA(TS.  [lECT.  IX. 

directors.     This  acceptance  was  held  not  to  bind  them, 
in  the  absence  of  evidence  of  authority  given  to  any 
one  of  the  directors  to  bind  the  other  directors  or  the 
company   at  large  by    the  acceptance   of  bills  of  ex- 
change.    "  The  address  of  a  bill,"  said  the  Chief  Jus- 
tice, "  to  the  directors  of  metropolitan  company,  and  the 
frame  of  acceptance  by  tlie  chairman  of  such  directors, 
for  himself  and  the  other  directors,  can  only  be  refer- 
able, unless  some  explanation  is  given,  to  a  company  of 
the  description  well  known  in  all  the  courts  of  law  and 
equity  in  Westminster  Hall  as  joint  stock  companies, 
pj.qQo-|    and  not  to  the  ordinary  partnerships  in  trade. 
'■"It  was  proved  upon  the  trial  of  the  cause,  that 
Clare,  the  drawer  of  the  bill,  from  whom  the  plaintiffs 
derived  title,  and  upon  whose  endorsement  they  rely, 
was  the  same  William  Clare  who  was  one  of  the  accep- 
tors and  one  of  the  defendants  in  his  capacity  of  ac- 
ceptor ;  so  that  the  bill  is  drawn  by  one  of  the  directors 
upon  himself  and  the  other  directors,  payable  to  his  own 
order,  and  accepted  by  another  director  for  himself  and 
the  rest.     But  the  right  of  one  director  to  draw  a  bill 
upon    the   rest,   and   still   further,   the   power   of  one 
director  to  accept  a  bill  for  himself  and  the  others,  so 
as  to  make  those  others  liable,  according  to  the  case  of 
Dickenson  v.  Valpy  {u),  in  the  authority  of  which  case 
we  entirely  concur,  is  not  a  right  or  power  implied  by 
law,  like  that  which   belongs  to  one  member  of  an  or- 
dinary partnership  in  trade  with  respect  to  bills  drawn 
and  accepted  for  the  purposes  of  the  trade.     It  must 
depend  upon  the  powers  given  by  the  charter  or  deed  or 
agreement  under  which  the  company  is  established  and 
constituted,  or  some  other  agreement  between  the  parties, 
whether  a  bill  so  drawn  and  accepted  shall  or  shall  not 
have  that  legal  effect.     But  upon  the  trial  of  this  cause, 

(m)  10  B.  &  C.  (21  E.  C.  L.  R.)  128. 

412 


LECT.  IX.]  COMPAlSriES.  393 

no  evidence  whatever  was  given  by  the  plaintiffs  of  the 
constitution  of  this  company,  nor  of  any  authority 
given  by  deed  or  otherwise  to  any  one  of  the  directors 
to  bind  the  other  directors,  or  to  bind  the  *com-  pv.oaAi 
pany  at  large,  by  his  acceptance  of  bills  of  ex- 
change; and  in  the  absence  of  such  evidence,  we  are  of 
opinion  that  no  such  authority  is  to  be  implied  by  law, 
or  can  be  held  to  exist." 

With  regard  to  the  borro"wing  of  money,  unless  it  be 
part  of  the  ordinary  business  of  the  company,  as  it 
would  be  of  a  banking  company  {x),  or  express  powers 
be  given  them  by  the  deed,  the  directors  have  no  au- 
thority to  jjledge  the  credit  of  the  shareholders  by  bor- 
rowing money,  even  though  it  be  necessary  to  enable 
them  to  carry  on  the  affairs  of  the  company  (y).  It 
has  since  been  held  that  even  a  clause  in  the  deed  of 
settlement,  under  which  a  mining  company  was  carried 
on,  which  provided  that  the  affairs  and  business  of  the 
company  should  be  under  the  sole  and  entire  control  of 
the  directors,  of  w^hom  there  should  not  be  less  than 
five  or  more  than  nine,  and  that  three  of  them  should 
at  all  meetings  of  directors,  and  for  all  purposes,  be 
competent  to  act,  did  not  authorize  them  to  borrow 
money  for  the  necessary  purposes  of  the  mines  (z).  As 
to  dealing  on  credit,  the  question  whether  the  company 
may  be  made  liable  by  its  agents  so  dealing,  depends, 
like  the  others  we  have  been  considering,  upon  the 
authority  given  to  those  agents ;  and  this  authority,  as 
in  other  cases,  may  be  proved  *by  showing  it  poq-i 
to  have  been  actually  given,  or  that  concerns 
of  the  nature  in  question  are  ordinarily  so  carried  on. 
"  The  question,"  said  Lord  Abinger,  "  which  was  de- 

(x)  Bank  of  Australasia  v.  Breillat,  6  Moore  P.  C.  C.  152. 

ly)  Eicketts  v.  Bennett,  4  C.  B.  (56  E.  C.  L.  K.)  686. 

{z)  Burmester  i-.  Xorris,  21  L.  J.  (Ex.)  43 ;  6  Ex.  796,  S.  C. 

413 


395  PARTIES    TO    CONTEACTS.  [lECT.  IX. 

cided  ill  Dickenson  v.  Valpy,  that  a  mining  company 
is  not  necessarily  formed  with  a  power  to  pledge  the 
credit  of  individual  members  by  the  drawing  of  bills, 
is  very  different  from  the  question  whether  it  is  not 
formed  with  power  to  bind  them  by  dealing  on  credit ; 
whether  the  directors  have  such  a  power,  must  depend 
on  the  general  nature  of  the  concern ;  it  is  a  matter  for 
the  jury  to  decide  upon,  unless  the  party  gives  evidence 
to  show  that  their  authority  was  expressly  limited,  and 
if  it  had  been  left  to  the  jury  in  this  case,  I  think  they 
would  not  have  had  much  difficulty  in  saying  that  it  is 
in  the  general  nature  of  mining  concerns  to  deal  on 
credit  for  the  purpose  of  carrying  on  their  busi- 
ness" {a).  This  distinction  between  borrowing  and 
dealing  on  credit  has  been  upheld  by  the  Court  of 
Chancery  (b). 

It  is  impossible  within  the  limits  of  this  work  to 
enter  even  upon  the  subjects  comprised  within  the  Rail- 
way Clauses  Act,  the  Lands  Clauses  Act,  the  Com- 
panies Clauses  Consolidation  Act,  or  the  Acts  regulat- 
ing Joint  Stock  Banking  Companies.  All  that  can  be 
r:j:oQ/^-i  douc  cousisteutly  with  the  present  *object,  in 
addition  to  what  has  been  said,  is,  to  give  a 
general  view  of  the  Law  of  Contracts  as  applied  by  the 
general  Act  already  referred  to,  and  known  as  "  The 
Companies  Act,  1862." 

By  virtue  of  this  Act,  the  principal  Act,  as  amended 
by  the  other  Companies  Acts  to  which  I  have  already 
referred  (c),  any  number  of  persons  not  less  than  seven 
may,  by  using  the  modes  prescribed  by  that  statute, 
form  themselves  into  an  incorporated  company,  so  as  to 
obtain   the   advantages   given   them   thereby.      These 

(a)  Tredwen  v.  Bourne,  6  M,  &  W.  465 ;  Hawken  v.  Bourne,  8  M.  «&  W. 
703. 

(6)  In  re  the  German  Mining  Co.,  22  L.  J.  (Ch.)  926. 
(c)  Ante,  p.  *383. 

414 


LECT.  IX,]  COMPANIES.  396 

modes  are  amongst  other  things  the  registration,  in  an 
office  provided  for  that  purpose,  of  a  document  called 
the  memorandum  of  association,  which  memorandum 
is  to  declare  the  name  of  the  company,  its  objects,  capi- 
tal, number  of  shares  into  which  its  capital  is  divided, 
the  liability  of  its  shareholders,  whether  limited  oi 
unlimited,  and  the  part  of  the  United  Kingdom  in 
which  its  registered  office  is  to  be  established.  The 
effect  of  this  memorandum,  wdien  registered,  binds  the 
company  and  the  shareholders  in  the  same  manner  as  a 
covenant  to  conform  to  all  the  regulations  of  the  memo- 
randum would  bind  them.  It  is  clear,  therefore,  that 
the  name  of  the  company  will  thereafter  be  that  wdiich 
is  declared  in  the  memorandum  of  association  until 
altered  in  a  legal  manner,  and  by  this  name  only  can  it 
contract,  so  that  the  rights  and  liabilities  provided  by 
^statute  shall  attach  to  it  by  the  contract.  r:::oQ7i 
More  precise  regulations  may  also  be  made  ac- 
cording to  a  form  provided  by  the  statute  to  accompany 
the  memorandum  of  association,  w^hich  are  called 
articles  of  association.  These  also  bind  the  share- 
holders and  the  company  as  if  they  had  respectively 
covenanted  to  the  same  effect,  and  these,  or  such  of 
them  as  are  chosen  by  the  company,  being  registered, 
and  the  registrar  having  certified  that  the  company  is 
incorporated,  the  shareholders  become  a  body  corporate 
by  the  name  in  the  memorandum  of  association.  But 
it  must  be  remembered  that  if  twenty  persons  or  more 
after  the  2nd  of  November,  1862,  carry  on  in  partner- 
ship any  trade  or  business  having  gain  for  its  object, 
unless  so  registered,  or  authorized  by  some  other 
statute,  or  engaged  in  mining  in  the  Stannaries,  each  of 
them  may  be  sued  for  the  whole  debts  of  the  co-part- 
nership without  joining  any  other  member.  As  to  con- 
tracts by  companies  which  come  within  the  prohibition 

415 


397  PARTIES    TO    CONTEACTS.  [lECT.  IX. 

contained  in  25  &  26  Vict.,  c.  89  (The  Companies  Act, 
1862),  s.  4,  see  ante,  p.  *292. 

The  objects  for  which  the  company  is  established, 
when  once  defined  by  the  memorandum  of  association, 
cannot  be  departed  from,  and,  therefore,  a  contract 
made  by  the  directors  of  the  company  upon  a  matter 
not  included  in  the  memorandum  of  association  is  tdtra 
vires  of  the  directors  and  void,  and  cannot  afterwards 
pj.oqo-|    be  ratified  by  the  assent  of  Hhe  whole  body  of 

the  shareholders  (d).  It  is  indeed  settled  law 
that  a  statutory  corporation  created  by  Act  of  Parlia- 
ment for  a  particular  purpose  is  limited  as  to  all  its 
powers  by  the  ]3urposes  of  its  incorporation  as  defined 
in  the  Act,  and  contracts  in  excess  of  those  powers  so 
limited  are  void  {e).  The  doctrine  of  ulb^a  vires,  how- 
ever, as  thus  explained,  is  to  be  applied  reasonably,  so 
that  whatever  is  fairly  incidental  to  those  things  which 
the  legislature  has  authorized  by  an  Act  of  Parliament, 
ought  not  (unless  expressly  prohibited)  to  be  held  as 
ultra  vires  (/).  The  cases  illustrating  this  doctrine  are 
very  numerous,  but  to  discuss  them  further  would  carry 
us  beyond  the  limits  of  these  Lectures,  and  I  must  there- 
fore pass  on  with  this  brief  notice  of  it  (^). 

Having,  then,  thus  delineated  the  name  by  which  a 
public  company  incorporated  under  the  Act  of  1862 
may  contract,  and  the  sort  of  contracts  which  it  may 

make,  we  come  to  consider  the  '"manner  in 
L         -J    which  it  may  make  them.     That  Act  gave  no 

(d)  Ashbury  Railway  Carriage  and  Iron  Co.  v.  Riche,  L.  R.  7  H.  L.  653  ;  44 
L.  J.  (Ex.)  18-5,  reversing  Riche  v.  Ashbury  Railway  Carriage  and  Iron  Co.,  L. 
R.  9  Ex  224;  43  L.  J.  (Ex.)  177. 

(e)  Ashbury  Railway  Carriage  and  Iron  Co.  v.  Riche,  L.  R.  7  II.  L.  653, 
693;  44  L.  J.  (Ex.)  185,  209  ;  Eastern  Counties  Ry.  Co.  v.  Hawkes,  5  H.  L. 
C.  331. 

(/)  Att.-Gen.  v.  Great  Eastern  Ry.  Co  ,  5  App.  Cas.473 ;  49  L.  J.  (Ch.)  545. 
(g)  See  on  the  subject  of  contracts  ultra  vires  of  companies,  Lindley  on  Part- 
nership, Bk.  ii.  c.  1.  s.  2,  pp.  249-253,  4th  ed. ;  see,  too,  Brice  on  Ultra  Vires. 

41G 


LECT.  IX.]  COMPANIES.  399 

form  of  contracting ;  but  as  companies  registered  under 
tliis  Act  are  incorj)orated  by  sect.  18,  the  modes  by 
which  a  corporation  contracts  were  in  general  aj)plicable 
to  them  (h).  The  powers,  however,  of  companies  regis- 
tered under  the  Companies  Act,  1862,  as  to  the  manner 
of  contracting  have  been  greatly  enlarged  by  the  Com- 
panies Act,  1867  (30  &  81  Vict.,  c.  131),  s.  37,  under 
which  section  contracts  on  behalf  of  any  such  company 
may  be  made  as  follows : — 

"  (1.)  Any  contract,  which,  if  made  between  private 
persons,  would  be  by  law  required  to  be  in  writing, 
and  if  made  according  to  English  law  to  be  under 
seal,  may  be  made  on  behalf  of  the  Company  in 
writing  under  the  common  seal  of  the  Company, 
and  such  contract  may  be  in  the  same  manner 
varied  or  discharged : 
"  (2.)  Any  contract,  which,  if  made  between  private 
persons,  would  be  by  law  required  to  be  in  writing, 
and  signed  by  the  parties  to  be  charged  therewith, 
may  be  made  on  behalf  of  the  Company  in  writ- 
ing, signed  by  any  person  acting  under  the  ex- 
press or  implied  authority  of  the  Company,  and 
such  contract  may  in  the  same  manner  be  varied 
or  discharged : 
"  (3.)  Any  contract,  which,  if  made  between  r*4nr\-i 
^private  persons,  would  by  law  be  valid, 
although  made  by  parol  only,  and  not  reduced  into 
writing,  may  be  made  by  parol  on  behalf  of  the 
Company  by  any  person  acting  under  the  express 
or  implied  authority  of  the  Company,  and  such 
contract  may  in  the  same  way  be  varied  or  dis- 
charged." The  section  concludes  with  declaring 
'*  that  all  contracts  made  according  to  the  provisions 

(h)  See  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3  C.  P.  463,  4  C  P. 
617  (Ex.  Ch.) ;  S.  C,  37  L.  J.  (C.  P.)  211,  38  lb.  338,  ante,  p.  *377. 

27  417 


400  PARTIES   TO   CONTEACTS.  [lECT.  IX. 

therein  contained  shall  be  effectual  in  law,  and  shall  be 
binding  upon  the  Company  and  their  successors  and 
all  other  parties  thereto,  their  heirs,  executors,  or 
administrators,  as  the  case  may  be." 

By  s.  55  of  the  principal  Act,  the  company  by  in- 
strument under  their  common  seal,  may  empower  any 
person  as  their  attorney  to  execute  deeds  in  their  behalf 
anywhere  out  of  the  United  Kingdom,  and  any  deed  so 
signed  by  the  attorney  on  behalf  of  the  company  and 
under  his  seal  shall  be  as  binding  as  if  under  the  com- 
pany's seal. 

By  s.  47  of  the  same  Act,  bills  of  exchange  and  prom- 
issory notes  shall  be  deemed  to  have  been  made,  accepted, 
or  endorsed  on  behalf  of  any  company  under  this  Act, 
if  made,  accepted,  or  endorsed,  in  the  name  of  the  com- 
pany by  any  one  acting  under  their  express  or  implied 
authority,  or  if  made,  accepted,  or  endorsed  by  or  on 
behalf  of  the  company  by  any  person  acting  under  the 
authority  of  the  company,  and  will  be  binding  on  them. 
Where  a  promis'sory  note  was  made  in  this  form : 
r*4nn  "Three  ^months  after  date  we  jointly  promise 
to  pay  to  F.  G.  or  order  £600  for  value  re- 
ceived in  stock,  on  account  of  the  London  and  Birming- 
ham Iron  and  Hardware  Company,  Limited.  Payable 
at  the  London  Joint  Stock  Bank,  Princes  Street,  Man- 
sion House. — William  Melrose,  H.  W.  Wood,  John 
Harris,  Directors;  Edwin  Guest,  Secretary," — the 
Court  considered  that  the  note  was  made  in  the  name 
of  the  company  within  the  similar  provisions  of  19  & 
20  Vict.,  c.  47,  s.  43  (now  repealed),  and  was  therefore 
binding  on  the  company,  and  not  on  the  directors  who 
signed  it  (i).    Still,  it  must  not  be  understood  that  either 

(i)  LindustJ  Melrose,  27  L.J.  (Ex.)  326;  3   H.  &  N.  177.     See  Smith  v. 
Johnson,  lb.  363 ;  3  H.  &  N.  222 ;  Penrose  v.  Martin,  28  L.  J.  (Q.  B.)  28 ; 
Alexander  v.  Sizer,  L.  E.  4  Ex.  102 ;  38  L.  J.  (Ex.)  59  (where  J.  S,  the 
418 


LECT.  IX.]  COMPANIES.  401 

by  the  above  47th  sect,  or  elsewhere  by  the  Act  of 
1862,  is  the  power  of  accepting  bills  of  exchange  or 
issuing  negotiable  instruments  given  to  companies  as  an 
incident  of  their  incorporation  under  that  Act.  The 
Act  leaves  the  power  of  a  company  so  incorporated, 
with  regard  to  negotiable  securities,  to  be  determined 
upon  the  proper  construction  of  the  memorandum  and 
articles  of  association.  There  may,  under  the  Act,  be 
companies  which  ^communicate  to  their  directors  r:^4rv9-| 
the  power  to  bind  the  shareholders  by  negotia- 
ble instruments.  There  may  be  companies  which  do 
not  communicate  any  such  power.  If  the  power  is  to 
be  given  to  the  directors  it  must  be  given  by  the  memo- 
randum, and  articles  of  association  (k). 

Preserving  the  forms  thus  required,  a  joint  stock  com- 
pany may  enter  into  any  lawful  contracts  requisite  to 
attain  the  objects  for  which  it  was  established.  Bearing 
in  mind  what  has  been  said  of  the  illegality  of  con- 
tracts uUi'a  vires  of  the  company,  it  will  not  probably 
be  very  difficult  to  determine  whether  any  proposed  con- 
tract is  such  as  will  bind  the  company  with  regard  to 
tlie  objects  declared  in  the  memorandum  and  articles  of 
association.  Upon  such  contracts  the  company  thus  in- 
corporated may  sue  and  be  sued  like  any  other  corpora- 
tion. If  the  company,  on  judgment  being  obtained 
against  it,  does  not  pay  or  satisfy  the  judgment,  and 
execution  issued  thereon  is  unsatisfied  in  whole  or  part, 
the  company  shall  be  deemed  unable  to  pay  its  debts  (s. 
80),  and  jiroceedings  may  then  be  taken  for  winding  up 

secretary  of  a  railway  company,  was  held  not  to  be  personally  liable,  on  a  note 
signtr-d  by  him,"  J.  S.,  Secretary")  ;  Dutton  v.  Marsh,  L.  R.  6  Q.  B.  3G1  (in 
which  case  the  directors  were  held  personally  liable  as  the  makers  of  a  note 
to  which  the  company's  seal  was  affixed). 

{k)  Peruvian  Railways  Co  v.  Thames  and  Mersey  Ins.  Co.,  per  Lord  Cairns, 
L.  J.,  L.  R.  2  Ch.  App.  617,  623,  36  L.  J.  (Ch.)  864,  865.  See  also  ante,  p. 
♦374. 

419 


402  PARTIES   TO   CONTRACTS.  [lECT.  IX. 

tlie  company,  as  it  is  called    (s.  79).     The  result  of 
these  as  to  the  liability  of  the  existing  shareholders  is, 
that  they  shall  upon  the  winding  up  be  liable  to  con- 
tribute  to  the  assets  of  the  comjDany,  to  an  *amount 
L       '^J    sufficient  to  pay  its  debts,  and  the  costs,  charges, 
and  expenses  of  winding  it  up ;  but  if  the  company  is 
limited,  each  shareholder  will  be  liable  to  contribute  to 
the  assets  of  the  company  to  the  amount,  if  any,  which 
may  remain  unpaid  on  the  shares  held  or  the  amount 
guaranteed  by  him   (ss.  38,  90,   134).     Moreover,  no 
person   who   has  ceased  to  be  a   shareholder  for  the 
period  of  one  year  prior  to  the  commencement  of  the 
winding  up,  shall  be  liable  to  contribute  to  those  as- 
sets, nor  shall  any  past  member  be  liable  in  respect  of 
any  debts  of  the  company  contracted  since  he  ceased  to 
be  a  shareholder   (s.  38).     But  if  the  company  being 
wound  up  be  limited,  no  past  or  j)resent  member  can  be 
made  to  contribute  more  than  the  amount  unpaid  on  his 
share,  or  the  amount  he  has  guaranteed  ;  nor,  whether 
the  company  be  limited  or  not,  shall  any  past  member 
be  liable  to  contribute,  unless  the  existing  members  are 
unable  to  satisfy  the  contributions  required.     The  lia- 
bility of  any  person  to  contribute  to  the  assets  of  a  com- 
pany registered  under  the  Act,  in  the  event  of  its  being 
wound  up,  is  to  be  deemed  to   create   a   debt   of  the 
nature  of  a  specialty  accruing  due  from  such  person  at 
the  time  when  his  liability  commenced,  but  payable  at 
the  times  when  calls  shall  be  made  for  enforcing  such 
liability  (s.  75). 

As  to  the  rights  of  shareholders  against  the  company, 
every  person  who  has  accepted  any  share  in  a  company 
registered  under  this  Act,  and  whose  *name  is 
^  -■  entered  in  the  register  of  members,  shall  for 
the  purposes  of  this  Act  be  deemed  a  member.  The 
transfer  of  any  share  may  be  in  a  form  provided  by  the 
420 


LEdT.  IX.]    MODE  OF  CONTRACTING. AGENTS.  404 

Act,  and  to  be  executed  by  transferor  and  transferee ; 
but  the  transferor  shall  be  deemed  to  remain  a  holder 
of  his  share  until  the  name  of  the  transferee  is  entered 
on  the  register,  and  the  title  of  every  shareholder  to  his 
shares  shall  be  a  certificate  under  the  common  seal  of 
the  company  specifying  the  shares  held  by  him.  Finally, 
the  amount  of  calls  for  the  time  being  unpaid  on  his 
shares  shall  be  deemed  a  debt  due  from  the  shareholder 
to  the  company  (ss.  23,  31,  Table  A.)  (/). 

I  have  now  specified  the  various  classes  of  parties  with, 
regard  to  whose  competency  to  enter  into  contracts  I 
had  any  particular  observations  to  make ;  and  now,  as- 
suming that  none  of  the  various  cases  of  disability  which 
I  have  mentioned  arises,  but  that  the  parties  entering 
into  the  contract  are  competent  by  law  to  do  so,  there 
remains  one  other  *very  important  subject  to  ad- 
vert  to,  namely,  the  mode  in  which  they  may  ■-  -• 
become  parties  to  the  contract.  And  this  must  be  in 
one  of  two  ways ;  either  personally  or  by  the  interven- 
tion of  an  agent. 

There  are  few  branches,  perhaps  no  branch,  of  the 
law  of  England,  to  which  it  becomes  so  often  necessary 
to  refei",  as  that  which  regulates  the  rights  of  parties 
under  contracts  made  by  agents.  The  truth  is,  that, 
as  society  is  now  constituted,  the  business  of  life  has 
become  so  complicated,  that  "  no  man's  individual  efforts 
can  embrace  all  the  subjects  with  which  he  is  called  on 
to  deal."  Hence  we  are  oliged  to  transact  a  variety  of 
business  and  enter  into  a  variety  of  engagements  through 

(l)  It  seems  undesirable  to  introduce  more  fully  the  subject  of  the  law  of 
joint-stock  companies  within  the  limits  of  this  work.  For  further  information 
on  that  subject  reference  may  be  made  to  the  chapter  on  Joint  Stock  Com- 
panies in  the  9th  edition  of  Smith's  Mercantile  Law,  by  Mr.  Dowdeswell, 
where  the  statutes  are  abridged  and  the  leading  decisions  arranged  with 
singular  fulness,  clearness,  and  brevity.  The  student  will  also  find  great 
advantage  in  consulting  on  this  subject  the  last  edition  of  Lindley  on  Partner- 
ship. 

421 


405  PAKTIES   TO   CONTEACTS.  [lECT.  IX. 

the  medium  of  agents,  the  precise  eifect  of  whose  acts 
in  binding  or  advantaging  us  becomes  of  course  a 
matter  of  the  utmost  practical  importance.  I  cannot,  how- 
ever, attempt,  in  the  time  which  remains  to  me  for  that 
purpose,  to  do  more  than  state  the  general  principles  by 
which  the  subject  (so  far  as  relates  to  contracts)  is 
regulated. 

Generally  speaking,  whatever  contract  a  man  may 
enter  into  in  his  own  person,  he  may,  if  he  think  lit, 
appoint  an  agent  to  enter  into  in  his  behalf.  There 
are,  indeed,  one  or  tAvo  exceptions  to  this  rule,  which 
arise  out  of  the  wording  of  certain  Acts  of  Parliament, 
requiring  the  intervention  of  the  principal  party  him- 
self in  certain  contracts.  For  instance,  a  man  could  not 
PHOfM  ^PPO^^^  ^^  agent  to  *sign  a  writing  for  the  pur- 
pose of  exempting  a  case  from  the  operation  of 
the  Statute  of  Limitations,  as  9  Geo.  IV.,  c.  14,  s.  1, 
required  the  writing  to  be  signed  by  the  party  charge- 
able thereby  (m).  Now,  however,  by  19  &  20  Vict.,  c. 
97  (Mercantile  Law  Amendment  Act,  18-56),  s.  13,  the 
signature  of  a  duly  authorized  agent  is  sufficient  in  that 
CMse.  Nor  can  a  person  who  objects  to  the  name  of 
another  being  retained  upon  the  list  of  voters  in  a  par- 
liamentary borough  empower  an  agent  to  sign  the 
objection  for  him  {n),  as  6  &  7  Vict.,  c.  18,  s.  100,  re- 
quires every  notice  of  objection  to  be  signed  by  the 
person  objecting.  But  it  seems  that,  unless  strictly 
required  to  be  signed  by  the  principal,  it  is  sufficient  if 
a  contract  required  to  be  in  writing,  be  signed  by  an 
authorized  agent  (o). 

(m)  Hyde  v.  Johnson,  2  Bing.  N.  C.  (29  E.  C.  L.  E.)  176;  Ley  v.  Peter,  27 
L.  J.  (E.X.)  239;  3H.  &N.  101. 

(rt)  Toms,  app.,  Cuming,  resp.,  7  M.  &Gr.  (49  E.  C.  L.  E.)  88.  See  Davies  v. 
Hopkins,  27  L.  J.  (C.  P.)  6 ;  3  C.  B.  (N.  S.)  (91  E.  C.  L.  E.)  376. 

(o)  Morton  v.  Copeland,  24  L.  J.  (C.  P.)  169 ;  16  C.  B.  (81  E.  C.  L.  E.) 
517. 

422 


LECT.  IX.]  CONTRACTS   BY   AGENTS.  406 

But,  generally  speaking,  whatever  contract  a  man 
may  lawfully  enter  into  himself,  he  may  appoint  an 
agent  to  enter  into  for  him.  There  is,  however,  another 
extensive  and  important  exception  to  this  rule,  which 
takes  place  when  a  man  is  himself  an  agent  (^9).  He 
cannot,  in  this  instance,  appoint  an  agent  to  transact 
the  matters  entrusted  to  his  own  *agency.  The  r-^.AOj-] 
exception  evidently  arises  from  the  very  nature 
of  his  own  appointment ;  for  it  is  one  thing  to  trust  a 
man's  discretion  to  transact  your  affairs  and  for  which 
you  may  know  him  to  be  quite  competent,  but  alto- 
gether another  and  a  different  thing  to  trust  his  discre- 
tion to  select  a  stranger  to  transact  your  affairs  at  your 
responsibility.  The  maxims  of  law,  therefore,  are — 
*^ Delegatus  non  potest  delegare,^^  and  "  Vicarius  non 
kabet  vicariurn " — maxims  which,  it  is  obvious,  are 
necessary  for  the  principal's  protection,  but  which,  it  is 
clear,  cannot  apply  where  you  give  your  agent  power  to 
appoint  a  deputy  either  expressly  (5"),  or  by  implication. 
For  such  a  power  may  be  implied,  either  from  the  con- 
duct of  the  parties  to  the  original  contract  of  agency, 
the  usage  of  trade,  or  the  nature  of  the  particular  busi- 
ness which  is  the  subject  of  the  agency ;  or  again, 
where  in  the  course  of  the  employment,  unforeseen 
emergencies  arise  which  impose  upon  the  agent  the 
necessity  of  appointing  a  substitute  (r). 

Now  the  considerations  on  which  I  shall  have  oc- 
casion to  touch,  relate  to  one  of  four  points  into 
which  what   I  have  to  say   on    this   subject   may    be 

(p)  Combe's  case,  9  Co.  76  b.;  Cobb  v.  Becke,  6  Q.  B.  (51  E.  C.  L.  R.)  930 ; 
Cockran  v.  Islam,  2  M.  &  Selw.  301,  n. 

[q)  Moon  V.  Whitney  Union,  3  Bing.  N.  C.  (32  E.  C.  L.  R.)  817 ;  Lord  v. 
Hall,  8  C.  B.  (60  E.  C.L.  R.)  C27. 

(r)  See  the  judgment  of  the  Court  of  Appeal  (delivered  by  ThesiijKr,  L.  J.) 
in  De  Bussche  v.  Alt,  8  Ch.  Div.  at  pp.  310,  311;  47  L.  J.  (Cli.)  pp.  386, 
387. 

423 


408  PAETIES   TO    CONTRACTS.  [lECT.  IX. 

r*40S1    ^conveniently   enough   distributed;   and    they 
relate  to  the  questions — 

1.  Who  may  be  an  agent. 

2.  How  an  agent  is  appointed. 

3.  How  far  his  contracts  bind  his  principal. 

4.  How  far  the  principal  may    be   advantaged   by 

them. 

Now,  with  regard  to  the  fii^st  point,  namely,  who  is 
competent  to  be  an  agent,  I  have  to  observe,  that  it  by 
no  means  follows  that  a  person  who  is  not  competent  to 
contract  himself  is  therefore  not  competent  to  contract 
as  agent  for  another  person  ;  thus  it  has  been  decided 
that  an  infant  may  be  an  agent,  or  even  a  married 
woman,  though  she  could  not  have  contracted  in  her  own 
right.  Thus,  where  a  married  woman  kept  a  school,  at 
which  the  defendant  had  placed  his  daughter,  and  drew 
upon  him  a  bill  for  the  expenses  of  the  daughter's  edu- 
cation, which  bill,  after  he  had  accepted  it,  she  endorsed 
to  the  plaintiffs,  and  the  drawing  and  endorsing  of  the 
bill  were  both  in  the  wife's  name,  but  with  the  hus- 
band's assent,  who  also  obtained  the  value  of  the  bill 
from  the  plaintiff's,  it  was  considered  that  there  was 
ample  evidence  of  the  husband  having  authorized  the 
drawing  and  endorsing  of  the  bill,  and  that  there  was 
nothing  to  prevent  his  making  his  wife  his  agent  for 
that  purpose.  The  defendant  therefore  as  acceptor, 
r*40Q"l  *^^^^  liable  to  the  plaintiffs  as  endorsees  (s).  In 
a  very  similar  case,  where  a  wife  accepted  in 
her  own  name  a  bill  drawn  upon  her  husband,  and  his 
authority  was  proved,  he  was  held  liable.     To  the  ob- 

(s)  Prestwick  v.  Marshall,  7  Bing.  (20  E.  C.  L.  E.)  56o  ;  Prince  v.  Brunatte, 
1  Bing.  N.  C.  (27  E.  C.  L.  E.)  435.  See  Lord  v.  Hall,  8  C.  B.  (65  E.  C.  L.  E.) 
627. 

424 


LECT.  IX.]  CONTRACTS    BY    AGENTS.  409 

jectioii  that  a  drawee  cannot  bind  himself  otherwise 
than  by  writing  his  own  name  on  the  bill,  which  you 
are  no  doubt  aware  is  the  general  practice  in  accepting 
bills,  it  was  asked,  would  he  not  be  liable  if,  with  his 
ow^n  hand,  he  had  accepted  the  bill  by  writing  another's 
name  across?  The  only  difference  was,  that  he  had 
done  so  by  the  hand  of  his  wife.  Had  he  done  it  with 
his  own  hand,  it  clearly  would  have  been  his  own  ac- 
ceptance, and  the  Court  held  that  there  was  no  rule  of 
law  which  made  such  an  authority  void.  Nobody  but 
the  defendant  could  have  accejoted  the  bill  so  as  to  bind, 
and  he  accepted  it  by  the  hand  and  in  the  name  of  his 
wife  {i).  It  will  be  obvious  that  the  general  reason 
why  persons  incapacitated  to  contract  may,  notwith- 
standing their  incapacity,  act  as  agents  in  the  contracts 
of  others,  is,  that  their  incapacity  is  personal,  and  that 
such  contracts  are  not  their  own,  but  the  contracts  of 
those  whose  agents  they  are. 

But  it  is  held  that,  upon  the  peculiar  wording  of  the 
Statute  of  Frauds,  one  of  two  parties  entering  into  a 
contract,  such  as  we  have  seen  *that  Act  re-  r*4i/)-| 
quires  should  be  in  writing  and  signed  by  the 
party  to  be  charged  thereby,  cannot  be  agent  for  the 
other,  even  with  that  other's  consent,  so  as  to  bind  him 
by  his  signature  to  such  a  writing  {u).  Thus,  Avhere 
the  plaintiff,  an  auctioneer,  sued  the  defendant  for  not 
paying  for  goods  })urchased  by  him,  and,  the  goods  not 
having  been  delivered,  the  only  evidence  of  the  con- 
tract was  the  book  kept  by  the  plaintiif  as  an  auctioneer, 
in  which  he  had  duly  entered  the  diflTerent  biddings 
opposite  the  lots ;    the    Court  of   King's  Bench    held 


(0  Lindus  v.  Bradwell,  5  C.  B.  (57  E.  C.  L.  R.)  583. 

(u)  Wright  V.  Dannah,  2  Camp.  203 ;  Farebrother  v.  Simmons,  5  B  &  Aid. 
(7  E.  C.  L.  R.)  333;  Sharman  v.  Brandt,  L.  R.  6  Q.  B.  720;  40  L.  J.  (Q.  li.) 
312. 

425 


410  PARTIES   TO   CONTRACTS.  [lECT.  IX. 

that,  although  in  general  an  auctioneer  may  be  con- 
sidered as  the  agent  and  witness  of  both  parties  (the 
vendor  and  the  purchaser),  yet  when  he  elects,  as  he 
may  do,  to  sue  himself  as  one  of  the  contracting  par- 
ties, the  agent  who  is  to  bind  a  defendant  by  his  signa- 
ture must  be  some  third  person,  and  not  the  other  con- 
tracting party  upon  the  record  {x).  To  allow  it,  indeed, 
would  seem  to  amount  to  a  direct  dispensation  with  the 
signature  of  the  party  to  be  bound,  which,  whether  by 

P4111  ^^^^  ^^^^  ^^  ^^^^  "^agent's  hand,  the  statute  re- 
quires. But  it  seems  to  be  no  violation  of  the 
requirement, — the  hand  of  the  agent  or  principal, — 
tliat  the  agent  of  the  one  party  should  act  as  the  agent 
of  the  other,  although,  of  course,  in  such  a  case  clear 
evidence  would  be  required  to  show  his  authority,  con- 
stituting him  the  agent  of  the  latter.  Thus,  in  an 
action  by  an  auctioneer  against  a  purchaser  of  goods 
sold  by  auction,  the  entry  in  the  auctioneer's  sale-book, 
made  bv  the  auctioneer's  clerk  who  W'as  assistins;  at  the 
sale,  and  as  each  lot  was  knocked  down  named  the  jiur- 
chaser  aloud,  and  on  assent  from  him  made  an  entry  of 
the  sale  to  him,  was  held  a  sufficient  memorandum 
within  the  17th  section  of  the  Statute  of  Frauds ;  the 
clerk  being,  in  the  first  instance,  tlie  agent  of  the  auc- 
tioneer, and  constituted  the  agent  of  the  purchaser  by 
the  assent  of  the  latter,  when  told  by  the  clerk  that  the 
lot  was  knocked  down  to  him  {y).  But  wliere  the 
traveller  of  a  wholesale  dealer,  calling  on  a  shopkeeper 
to  sell  his  principal's  goods,  and  having  by  parol  sold 
him  certain  sugar,  was  desired  by  the  latter  to  make, 

{x)  Farebrotlier  v.  Simmons,  supra.  An  auctioneer,  however,  is  only  the 
agent  of  both  vendor  and  pureliaser  at  tlie  sale ;  when  the  sale  is  over  the 
rule  does  not  apply.  His  signature  therefore,  on  a  subsequent  sale  of  unsold 
lots  left  over,  would  not  bind  either  party  in  the  absence  of  evidence  of  sub- 
Bequeni  authority.     Mews  v.  Carr,  1  H.  &  N.  484;  26  L.  J.  (Ex.)  39. 

[y]  Bird  i-.  Boulter,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  443. 

426 


LECT.  IX.]  CONTRACTS   BY   AGENTS.  411 

in  liis  (the  shopkeeper's)  book,  a  memorandum  of  the 
transaction,  and  thereupon  made  the  following — "  Of 
North  &Co.,  30  matsmaurs,  at  71s., — cash  2  months, — 
Fenning's  Wharf,"  and  signed  it  with  his  own  name ; 
the  sugar  having  been  destroyed  before  it  was  delivered, 
it  became  ^necessary  to  prove  the  sale  by  a  r-^4-|9-| 
written  memorandum ;  but  these  facts  were 
held  insufficient  to  show  that  the  traveller  was  consti- 
tuted the  agent  of  the  shopkeeper  to  bind  him  under 
the  statute  {z).  Indeed,  it  seems  clear,  as  observed  in 
the  case,  that  the  signing  of  the  entry  in  the  defend- 
ant's book  would  tend  to  make  it  obligatory  on  the 
plaintiff,  the  vendor,  rather  than  on  the  defendant,  the 
shopkeeper. 

With  regard  to  the  second  point,  namely,  in  what 
manner  an  agent  is  to  be  appointed  : — Whenever  there 
is  no  particular  rule  of  law  or  special  statutory  provi- 
sion pointing  out  a  particular  mode  of  appointment,  he 
may  be  appointed  even  by  bare  words.  But  there  are 
some  cases  in  which  the  Common  or  Statute  Law  does 
require  a  particular  mode  of  appointment ;  for  instance 
it  is  a  rule  of  Common  Law,  that  an  agent  wdio  is  to 
contract  for  his  principal  by  deed,  must  himself  be 
appointed  by  deed  (a)} 

(z)  Graham  v.  Musson,  5  Bing.  IST.  C.  (35  E.  C.  L.  R.)  603 ;  Graham  v. 
Fretwell,  3  M.  &  Gr.  (42  E.  C.  L.  E.)  368  j  Mews  v.  Carr,  26  L.  J.  (Ex.)  39 ; 
1  H.  &  N.  484. 

(a)  Harrison  v.  Jackson,  7  T.  E.  209, 


^  M'Murty  v.  Frank,  4  Mon.  39  ;  Cummings  v.  Cassily,  5  B.  Men.  74  ;  Boyd 
V.  Dodson,  5  Humph.  37  ;  Bragg  v.  Fessenden,  1 1  111.  544 ;  Damon  v.  Granby, 
2  Pick.  352;  Blood  r.  Goodrich,  12  Wend.  525;  Wells  v.  Evans,  20  lb  251 ; 
Rhode  t;.  Louthain,  8  Blackf.  41.3.  Perhaps  the  most  important  as  well  as 
frequently  recurring  cases  to  which  this  common  law  rule  applies,  are  those 
of  contracts  under  seal  made  by  one  member  of  a  partnership  without  au- 
thority under  seal  from  the  other. — r. 

Where  a  man's  wife  signed  his  name  to  a  deed  and  sealed  it,  and  he  subse- 

427 


412  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

Again,  a  corporation,  as  it  can,  generally  speaking, 
do  no  act  except  by  deed  ;  so  it  cannot,  generally  s})eak- 
ing,  a])point  an  agent  in  any  other  way.  There  are, 
indeed,  one  or  two  exceptions  to  this,  as  you  have  seen 
there  are  to  the  rule  which  obliges  them  to  contract  by 
P  deed,  particularly  in  the  cases  of  ""trading  com- 

L  -'  panics.  You  will  find  the  rule  and  tlie  excep- 
tions discussed  in  Dunston  v.  Imj^erial  Gas  Light  Com- 
pany [b).  With  regard  to  the  case  of  a  statute  requir- 
ing a  particular  mode  of  appointment,  you  may  take, 
for  example,  the  Statute  of  Frauds,  the  1st,  2nd,  and 
3rd  sections  of  which  require,  in  express  terms,  that 
the  agent  who  is  to  do  any  of  the  acts  mentioned  in 
those  sections  shall  be  appointed  by  writing,  whereas 
the  4th  and  17th  sections  contain  no  such  provision. 
The  consequence,  of  course,  is,  that  in  cases  within 
these  latter  sections  the  agent's  authority  need  not  be 
in  writing  (c). 

With  regard  to  the  third  point,  namely,  in  what 
cases  the  principal  is  bound  by  his  agent's  contract : — 
It  is,  of  course,  obvious,  at  first  sight,  that,  so  far  as  the 
agent's  authority  extends,  his  principal  is  bound  by  all 
acts  done  in  pursuance  of  that  authority.^     So  far  there 

(6)  3  B.  &  Ad.  (23  E.  C.  L.  R.)  125. 
(c)  Emmerson  v.  Ileelis,  2  Taunt.  46. 

quently  acknowledged  the  deed  before  a  magistrate,  it  was  held  that  this  was 
a  ratification  and  adoption  of  the  deed  which  bound  him :  Bartlett  v.  Drake, 
100  Mass.  174.  And  in  a  subsequent  case  in  the  same  court  Gray,  C.  J.,  said, 
"The  law  is  settled  in  this  comiru)nwealth  that  the  unauthorized  execution  of 
a  deed  in  the  name  either  of  a  partnership  or  of  an  individual  may  be  rati- 
fied by  parol :"  Holbrook  v.  Chamberlin,  116  lb.  161.  Sed  contra:  Stetson  v. 
Patton,  2  Greenl.  358;  Despatch  Line  v.  Man.  Co.,  12  N.  H.  205;  see  Blood 
t;.  Goodrich,  9  Wend.  77. 

'  Every  one  who  deals  with  an  agent  is  bound,  at  his  peril,  to  ascertain  the 
extent  of  his  authority:  Powell  i'.  Henry,  27  Ala.  612.  The  authority  of  a 
general  agent  to  contract  so  as  to  bind  his  principal  is  only  limited  to  the 
usual  and  ordinary  means  of  accom]ilishing  the  business  entrusted  to  him: 
Williams  v.  Getty,  31  Pa.  St.  461 ;  McAlpin  v.  Cassidy,  17  Tex.  462.— S. 
428 


LECT.  IX.]  CONTRACTS    BY    AGENTS.  413 

can  be  no  doubt  or  difficulty  whatever.  But  the  cases 
in  which  doubts  and  difficulties  arise,  are  those  in  which 
the  agent  has  gone  beyond  his  authority — lias  made 
some  contract  which  his  instructions  do  not  authorize; 
and  then  the  question  arises  whether  his  principal  shall 
or  shall  not  be  bound  by  it.  Now,  in  order  to  solve 
this  question,  it  is  necessary,  in  the  first  instance,  to 
understand  the  distinction  between  general  and  par- 
ticular agency.  A  general  agent  is  an  agent  entrusted 
with  all  his  principal's  ^business  in  some  specific  r*4i4-j 
line,  of  some  specific  kind.  A  particular  agent 
is  an  agent  employed  specially  for  some  one  special  pur- 
pose. For  instance,  if  I  entrust  another  with  the  sale 
of  a  particular  horse,  of  which  I  am  desirous  of  dispos- 
ing, he  is  a  particular  agent  to  transact  that  particular 
business  {d).  But  if  I  appoint  an  agent  to  sell  all  my 
horses,  and  consign  horses  to  him  from  time  to  time  for 
sale,  he  is  my  general  agent  in  that  line  of  business. 
Now,  there  is  this  important  distinction  between  con- 
tracts made  by  general,  and  those  made  by  particular, 
agents — namely,  that  if  a  particular  agent  exceed  his 
authority,  his  principal  is  not  bound  by  what  he  does  ;^ 

{d)  Brady  v.  Tod,  30  L,  J.  (C.  P.)  223 ;  9  C.  B.  (N.  S.)  (99  E.  C.  L.  R.) 
592. 


^  Thus,  in  Batty  v.  Carswell,  2  Johns.  48,  where  one  who  was  authorized 
to  sign  a  note  for  another  for  $250,  payable  in  six  months,  signed  one  payable 
in  sixty  days,  it  was  held  that  the  principal  was  not  liable,  because  the 
authority,  which  was  a  special  one,  was  not  strictly  pursued.  So,  a  clerk  in  a 
retail  store  has  no  authority  to  sell  by  wholesale,  or  to  delirer  goods  in  pay- 
ment of  or  security  for  debts :  Beals  r.  Allen,  18  Johns.  362 ;  Hampton  v.  Mat- 
thews, 14  Pa.  St.  107.  So,  a  clerk  employed  to  do  outdoor  business  of  a  mer- 
chant, such  as  to  negotiate  purchases  and  charter-parties,  present  bills  of 
lading  for  signature,  &c.,  has  no  authority  to  pledge  these  bills  of  lading, 
or  receive  advances  on  them :  Zachrisson  v.  Ahman,  2  Sandf.  68.  So,  one 
employed  by  a  merchant  to  purchase  goods,  give  notes,  and  do  all  other 
things  in  his  business  as  merchant  will  not  be  authorized  to  mortgage  goods  in 
the  merchant's  store:  Reeves  v.  Baldwin,  1  Smith,   170.     So,   one   having 

429 


414  PARTIES   TO    CONTRACTS.  [lECT.  IX. 

whereas,  if  a  general  agent  exceed  liis  authority,  hi? 
principal  is  bound,  provided  what  he  does  is  within  the 
ordinary  and  usual  scope  of  the  business  he  is  deputed 
to  transact.  For  instance,  if  I  employ  A.  to  carry  a 
bale  of  cottons  from  Manchester  to  Liverpool,  and  he 
sells  them,  I  am  not  bound  by  the  sale,  Imt  may  bring 
an  action  of  trover  for  them  against  the  purchaser ; 
whereas,  had  I  entrusted  them  to  my  factor  for  the 
same  purpose,  I  should  have  been  bound  by  the  sale, 
that  being  a  transaction  within  the  ordinary  scope  of 
his  business  as  factor  {e)} 

(e)  See  Fenn  v.  Harrison,  3  T.  R.  757  ;  4  T.  R.  177. 


authority  to  collect  a  note,  has  none  to  take  a  sealed  note  for  the  amount,  and 
there  will  be  no  merger  of  the  original  debt:  McCuUoch  v.  McKee,  16  Pa.  St. 
289.  So,  if  a  shopman  authorized  to  receive  money  over  the  counter  only  re- 
ceives it  elsewhere  than  in  the  shop,  the  payment  is  not  good  :  Kaye  v.  Brett, 

5  Exch.  273.  Other  instances  of  the  application  of  this  familiar  rule  may  be 
found  in  Andrews  v.  Kneeland,  6  Cow.  354 ;  Thompson  v.  Stewart,  3  Conn. 
171 ;  Snow  v.  Perry,  9  Pick.  542;  Lobdell  r.  Baker,  1  Mete.  201 ;  Huntington 
V.  Wilder,  6  Vt.  234;  Brown  v.  Billings,  22  lb.  98;  Gordon  v.  Buchanan,  5 
Yerg.  71 ;  Bank  of  Hamburg  v.  Johnson,  3  Rich.  42 ;  Carter  v.  Taylor,  6  Sm. 

6  M.  367  ;  Shriver  v.  Stevens,  12  Pa.  St.  258 ;  Scott  v.  McGrath,  7  Barb.  53 ; 
Paige  V.  Stone,  10  Mete.  160. — r. 

Taylor  v.  Labeaume,  14  Mo.  572  ;  Nash  ?>.  Drew,  5  Cush.  422;  The  Methuen 
Co.  V.  Hayes,  33  Me.  169  ;  Bailey  v  Rawley,  1  Swan,  295 ;  Kirk  v.  Hiatt,  2 
Ind.  322 ;  Towle  v.  Leavitt,  23  N.  H.  360 ;  Huber  v.  Zimmerman,  21  Ala. 
488.  An  agent  employed  to  buy  and  sell  has  no  authority  to  bind  his  prin- 
cipal by  a  negotiable  note  given  for  notes  bought :  Temple  v.  Pomroy,  4  Gray, 
128.— s. 

'  A  factor  is  a  general,  not  a  special  agent,  entrusted  with  the  possession 
disposal,  and  apparent  ownership  of  property  ;  and  having  a  general  power  to 
sell,  he  may  do  so  for  cash  or  on  credit,  and  receive  in  payment  notes  or  any 
kind  of  property.  Notwithstanding  this  general  authority,  it  was,  however, 
held  in  England,  in  the  case  of  Paterson  v.  Tash,  2  Str.  1178,  that  "a  factor 
cannot  bind  or  affect  the  property  of  the  goods  by  pledging  them  as  a  security 
for  his  own  debt,  though  there  may  be  the  formality  of  a  bill  of  parcels  and  a 
receipt,"  and  this  decision  has  been  followed,  though  with  occasional  reluctance, 
by  numerous  cases :  Daubigny  v.  Duval,  5  T.  R.  604 ;  Martini  v.  Coles,  1  M.  & 
S.  140,  493;  Graham  v.  Dyster,  6  lb.  1,  14;  Queirozv.  Trueman,  3  B.  &  C.  (10 
E.  C.  L.  R.)  342 ;  Fielding  v.  Kymer,  2  Brod.  &  Bing.  (6  E.  C.  L.  R.)  639. 
Such  is  recognized  as  the  rule  on  this  side  of  the  Atlantic,  unless  where  it  has 
been  altered  by  statute :  Van  Amringe  v,  Peabody,  1  Mas.  440;  Kinder  v.  Shaw, 

430 


LECT.  IX.]  CONTRACTS    BY   AGENTS.  415 

*The  case  of  Whitehead  v.  Tuckett  (/)  is  a  r.;..».  ^^ 
very  good  illustration  of  the  rule,  that,  although 
the  express  instructions  are  exceeded,  yet,  if  what  he 
does  is  within  the  usual  scope  of  the  business  he  is 
deputed  to  transact,  the  agent  binds  his  principal  by  so 
doing.  There,  Sill  &  Co.,  who  were  brokers  at  Liver- 
pool, were  employed  by  the  defendant,  a  wholesale 
grocer  at  Bristol,  to  buy  and  sell  on  his  account  great 
quantities  of  sugar.  The  greater  part  was  bought  on 
speculation  for  resale,  and  was  resold  at  Liverpool ;  but 
some  was  occasionally  sent  to  the  defendant.  Sill  <fe 
Co.  usually  bought  and  paid  for  the  sugar,  and  re-sold 
in  their  own  names  and  received  the  price.  They  did 
not  draw  upon  the  defendant  for  the  amount  of  each 
purchase,  nor  remit  him  the  bill  in  payment  of  each 
sale ;  but  there  was  a  general  running  account  between 
them.  Sill  &  Co.  never  had  a  general  authority  to 
buy,  but  received  directions  in  each  instance ;  but  some- 
times, when  the  markets  were  low,  had  unlimited  au- 
thority as  to  the  quantity  they  were  to  buy,  or  the  price 
they  were  to  pay.     In  like  manner,  they  had  no  gen- 

(/)  15  East,  400.     See  In  re  Athenjeum  Life  Ass.  Co.,  27  L.  J.  (Ch.)  829. 


2  Mass.  898 ;  Odiorne  v.  Maxcj,  13  lb.  178 ;  Hoffman  v.  Noble,  6  Mete.  74 ; 
Ilolton  V.  Smith,  7  N.  H.  446 ;  Newbold  v.  Wright,  4  Eawle,  195 ;  Kennedy 
V.  Strong,  14  Johns.  128  ;  Hewes  v.  Doddridge,  1  Eobinson  (Va.)  143.  It  has, 
however,  been  held  that  althougii  a  factor  has  not  authority  to  pledge,  yet  he 
can  in  the  nsual  course  of  mercantile  dealing,  deliver  for  sale  to  a  broker 
auctioneer.  &c.,  the  goods  entrusted  to  him,  and  receive  money  upon  them  as 
an  advance,  and  the  deposit  will  bind  the  principal,  who  cannot  recover  them 
in  trover :  Martini  v.  Coles,  supra;  Laussatt  v.  Lippincott,  6  S.  &  R.  386 ;  Mar- 
tin V.  Moulton,  8  N.  H.  504;  Bowie  v.  Napier,  1  McCord,  1.  But  the  rule 
thus  established  by  Paterson  v.  Tash,  having  been  thought  to  impose  undue 
restrictions  upon  the  facilities  of  commercial  dealings,  has  been  altered  by  the 
acts  of  Parliament  referred  to  by  the  English  editor,  supra,  which  have  been 
copied  with  more  or  less  exactness  in  New  York,  Pennsylvania,  Rhode  Island 
Ohio,  Massachusetts,  and  some  other  States.  See  the  note  to  Laussatt  v.  Lip- 
pincott, in  1  Am.  L.  C.  668. — R. 

431 


415  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

eral  authority  to  sell,  but  received  directions  on  each 
occasion.  It  was  held  that  they  might  bind  their  prin- 
cipal by  a  re-sale  of  a  particular  parcel  of  sugar  before 
purchased  and  paid  for  in  their  own  names  and  lodged 
r*41fi1    ^"   their  own  warehouse,  ^though  such  re-sale 

was  for  a  price  less  than  they  were  directed  by 
their  principals  to  sell  for;  for  the  Court  considered 
that  the  general  authority  of  the  broker  to  sell  being, 
in  respect  of  those  who  did  not  know  their  private 
instructions,  to  be  collected  from  their  general  dealing, 
was  not  limited  by  such  private  instructions.  So,  where 
the  real  principal  in  a  business  holds  out  an  agent  as 
the  ostensible  principal,  and  carries  it  on  under  his 
management  and  in  his  name,  he  is  bound  by  all  such 
acts  and  contracts  as  are  incidental  to  the  ordinary  con- 
duct of  the  business,  and  this  obligation  cannot  be 
restricted  by  any  private  arrangement  between 
them  (g).  On  the  other  hand,  the  following  case  illus- 
trates the  rule  as  to  the  particular  agent.  The  defend- 
ant, being  about  to  purchase  a  mare,  wrote  to  the  plain- 
tiff, "  I  will  take  the  mare  at  twenty  guineas,  of  course 
warranted ;"  and  subsequently  wrote  again,  "  My  son 
will  be  at  the  World's  End  (a  public-house)  on  Monday, 
when  he  will  take  the  mare  and  pay  you :  send  any- 
body with  receipt  and  money  shall  be  paid,  only  say  in 
the  receipt  sound  and  quiet  in  harness."  The  plaintiff 
wrote  in  reply,  "  She  is  warranted  sound,  and  quiet  in 
double  harness ;"  and  the  mare,  having  been  brought 
to  the  World's  End  on  Monday,  was  taken  away  by  the 
defendant's  son  without  paying  the  price,  and  without 
r-^.^^-,    a  receipt  or  *warranty.     The  defendant  kept 

her  two  days,  and  then  returned  her  as  being 
unsound.  The  writings  between  the  parties  not  amount- 
ing to  a  complete  contract,  it  was  sought  to  show  that 

{g)  Edmunds  v.  Bushell,  L.  E.  1  Q.  B.  97  ;  35  L.  J.  (Q.  B.)  20. 
432 


LECT.  IX.]  CONTRACTS    BY    AGENTS.  417 

the  defendant  was  bound  by  the  conduct  of  his  son,  as 
amounting  to  an  acceptance  in  law.  But  it  wall  clearly 
be  perceived  that  the  son  was  a  particular  agent,  in 
which  case  his  principal  is  not  bound  by  what  he  does 
if  he  exceeds  his  authority.  *'  The  son,"  said  Parhe^ 
B.,  "  had  only  a  limited  authority ;  and  if  a  party  con- 
tracts with  another  through  his  agent,  he  can  only  take 
such  rights  a,s  the  agent  can  give :  and  this  is  no  hard- 
ship on  the  plaintiff,  because  he  was  distinctly  informed 
that  the  son  was  authorized  to  receive  the  mare  if  a 
warranty  were  given  that  she  was  quiet  in  harness." 
This  was  not  given,  and,  therefore,  the  son  had  no 
authority  to  accept  the  mare,  and  the  defendant  w^as 
not  bound  by  the  son's  act  (A). 

Now  the  reason  for  this  distinction  between  the  case 
of  a  general  and  particular  agent  is  very  clear  and 
simple :  it  is,  that  the  public  may  not  be  deceived.  If 
strangers  see  A.  selling  my  goods  day  after  day,  month 
after  month,  and  see  me  recognizing  the  transactions, 
and  receiving  payment  on  that  understanding,  they 
may  naturally  enough  suppose  that  I  have  given  him  a 
general  authority  to  sell,  and  that  they  may  safely  deal 
with  him  on  '^'my  account;  and  it  would  be  rH-M-io-i 
hard  indeed  if  I  were  allowed  to  turn  round 
upon  them  and  say,  "  True,  he  has  a  general  authority, 
but  I  had  revoked  it  in  this  particular  instance."  But, 
in  the  case  of  a  particular  agent,  it  is  otherwise ;  for,  as 
he  is  employed  on  one  particular  occasion  only,  there 
are  no  previous  acts  done  by  him  for  his  principal, 
or  recognitions  of  them  by  the  principal,  which  can 
have  a  tendency  to  mislead  any  one.  And  there  is  no 
hardship  in  saying  to  the  person  who  deals  with  him, 
"  You  must  satisfy  yourself  that  he  is  my  agent  at  all, 
and  when  you  do  so  you  may  as  well  satisfy  yourself 

{h)  Jordan  v.  Norton,  4  M.  &  W.  155,  162. 

28  433 


418  PARTIES    TO    CONTRACTS.  [lECT.  IX. 

for  wliat  purposes  he  is  my  agent,  and  how  far  his 
authority  extends,"^ 

Such  then  is  the  distinction  between  a  particular  and 
a  general  agent ;  and  with  regard  to  the  latter,  there  is, 
for  the  further  protection  of  the  public,  this  further 
rule,  that  the  authority  of  a  general  agent  is,  as  far  as 
the  public  are  conceited,  measured  by  the  extent  of  his 
usual  employment.  This  is  also  a  rule  of  common  sense 
as  well  as  law ;  for  what  I  see  a  man  continually  doing 
with  the  approbation  of  another,  I  may  fairly  conclude  he 
has  a  general  authority  to  do.  I  have  not,  it  is  true, 
seen  his  instructions,  but  I  am  justified  in  believing 
that  he  acts  according  to  them  when  I  see  that  his 
principal  does  not  signify  disapprobation  of  his  pro- 
ceedings ;  and  therefore  the  rule  is,  that  where  a  man  i 
permits  another  to  act  generally  for  him  in  any  line  of 
P41Q1  business,  he  is  bound  by  contracts  made  *by 
that  other  in  that  line  of  business ;  althougli, 
in  truth  and  in  fact,  the  person  so  acting  may  have  a 
limited  authority,  or  even  no  authority  at  all.  This  is 
laid  down  by  Lord  Holt,  in  homely,  but  forcible  lan- 
guage, in  Shower,  95,  where  it  is  thus  reported  : — 

^'llemorandum. — Upon  evidence  in  an  assumpsit  for 
wares  sold,  it  is  held  by  Holt,  C.  J.,  that  if  a  man  send 
his  servant  with  ready  money  to  buy  meat  or  other 
goods,  and  the  servant  buys  upon  credit,  the  master  is 
not  chargeable.^     But  if  the  servant  usually  buy  upon 

'  Snow  V.  Perry,  9  Pick.  542 ;  Fisher  v.  Campbell,  9  Port.  210 ;  Johnson  v. 
Wingate,  29  Me.  404 :  Hatch  v.  Taylor,  10  N.  H.  538.— R. 

^Boston  Iron  Co.  v.  Hale,  8  N.  H.  363.  Otherwise,  of  course,  if  the  servant 
or  agent  be  ordered  to  buy,  and  be  not  furnished  with  money :  Sprague  v. 
Gillett,  9  Mete.  91— R. 

When  the  authority  of  an  agent  is  in  question  as  to  a  certain  sale,  evidence 
of  similar  sales  made  subsequently  under  different  circumstances  is  not  admis- 
sible to  show  ratification  of  the  first  sale,  such  facts  being  collateral,  and  not 
affording  a  reasonable  inference  as  to  the  matter  in  dispute  :  Lee  v.  Tinges,  7 
Md.  215  —s. 

434 


LECT.  IX.]  CONTEACTS   BY   AGENTS.  419 

tick,  aud  the  servant  buy  some  things  without  the 
master's  order,  yet,  if  the  master  were  trusted  by  the 
trader,  the  master  is  chargeable." 

There  is  a  case  of  Rusby  v.  Scarlett  (i) ,  which  affords 
a  good  illustration  of  this.     The  plaintiff  was  a  corn- 
chandler,  who  sued  the  defendant  for  the  price  of  hay 
and  straw  sold  for  the  use  of  the  defendant's  horses. 
He  had  delivered  it  at  the  defendant's  stables,  and  also 
bills  of  parcels,  but  had  never  seen  the  defendant  or 
received  any  order  from  him,  or  any  payment  whatever 
directly  from  him.     The  defence  was  that  the  defendant 
had  given  his  coachman  money  to  pay  the  bills,  which 
he  had  embezzled.     The  defendant  kej)t  a  book  with 
his  coachman,  in  which  were  entered  the  articles  pro- 
cured by  him,  and  money  from  time  to  *time    r*49A-| 
advanced  to  him ;  but  there  did  not  appear  to 
be  any  connection  between  the  sums  advanced  to  the 
servant,  and  the  demands  which  he  was  to  pay ;    but 
the  money  was  advanced  generally.     "  If,"  said  Lord 
Ellenborough  to  the  jury,  "  the  servant  was  always  in 
cash  beforehand  to  pay  for  the  goods,  the  master  is  not 
liable,  as  he  never  authorized  him  to  pledge  his  credit. 
But,  if  the  servant  was  not  so  in  cash,  he  gave  him  a 
right  to  take  up  the  goods  on  credit :  and  I  think  he 
would  be  liable,  as  the  servant  has  not  paid  the  plain- 
tiff, though  he  might  have  received  the  money  from  the 
defendant,  his  master."     Upon  the  law  thus  laid  down, 
the  jury  found  a  verdict  for  the  plaintiff.     "Suppose," 
said  Lord  Denman,  C.  J.,  in  another  case,  "  a  landed 
proprietor  had  to  send  his  steward  habitually  to  the 
neighbouring  fairs  and  markets  to  make  sales  and  pur- 
chases for  him  in  matters  connected  with  the  manage- 
ment of  his  estate ;  that  the  steward  makes  all  these 
contracts  in  his  own  name,  but  that  he  is  universally 

(i)  o  Esp.  76. 

435 


420  PARTIES   TO   CONTEACTS.  [lECT.  IX. 

known  to  have  no  land  of  his  own,  and  to  be  acting 
solely  for  his  employer,  by  his  direction  and  on  his 
credit.  Could  his  intention  to  make  himself  the  owner 
of  articles  bought  on  one  particular  occasion  in  the 
course  of  the  same  dealing,  deprive  the  vendor  of  his 
recourse  against  the  master?  Clearly  not."  In  this 
instance  every  one  would  naturally  suppose  that  the 
proprietor  who  authorized  him  to  purchase  in  numerous 
r*4911  ^^^^^^'  authorized  him  to  purcliase  in  *that  case 
also,  in  which  he  appropriated  the  thing  pur- 
chased to  himself,  and  the  proprietor  could  not  in 
common  reason  and  justice  be  allowed  to  say  to  a  person 
dealing  innocently,  that  he  did  not  authorize  him  in 
that  instance  (k).  In  the  case  (/)  from  which  these 
observations  are  taken,  the  defendant,  who  was  a  mer- 
chant at  St.  Petersburgh,  had  for  a  long  time  carried  on 
business  in  London  through  one  Higginbotham,  in  all 
the  transactions  of  which  business  Higginbotham  always 
used  his  own  name,  but  was  universally  known  to 
represent  the  defendant  in  them.  He  had  himself 
neither  capital  nor  credit.  The  defendant  put  an  end 
to  the  agency  ;  and  afterwards  Higginbotham  made  the 
contract  (a  sale  of  tallow)  on  which  the  action  was 
brought,  in  all  respects  as  if  it  had  been  in  the  defend- 
ant's business,  in  his  own  name  as  usual,  and  notwith- 
standing the  termination  of  his  agency ;  and  the  de- 
fendant was  quite  ignorant  of  the  transaction.  These 
were  substantially  the  facts  in  the  case.  The  defendant 
was  held  bound  to  deliver  the  tallow.  A  motion  for  a 
new  trial,  on  the  ground  that  the  sale  was  made  by 
Higginbotham  on  his  own  account,  was  refused,  on  the 
ground  that  he  was  trading  in  his  own  name  as  the 
defendant's  agent,  with  the  defendant's  full  knowledge 

(k)  Trueman  v.  Loder,  11  A.  &  E.  (39  E.  C.  L.  R.)  593. 
{I)  lb.  589. 

436 


LECT.  IX.]  CONTRACTS    BY    AGENTS.  421 

and  authority;  and  that  till  the  defendant  *gave  r*492-| 
notice  to  the  world  that  he  revoked  Higgin- 
botham's  power  to  act  for  him,  all  persons  had  a  right 
to  hold  him  to  the  contracts  made  by  Higginbothara. 
"  In  a  word,"  said  the  Court,  "  it  was  considered  tliat 
the  defendant  was  carrying  on  his  business  in  the  name 
of  Higginbotham." 

Tlie  case  of  Pickering  v.  Busk  (m)  is  in  accordance 
with  the  same  rule.  There  a  broker  in  London,  engaged 
in  the  hemp  trade,  purchased  for  the  plaintiff,  a  mer- 
chant at  Hull,  a  parcel  of  hemp  then  lying  at  a  wharf 
in  the  vendor's  name,  and  the  hemp  was,  by  the  plain- 
tiff's desire,  transferred  in  the  wharfinger's  books  from 
the  vendor's  name  to  the  broker's,  and  paid  for  by  the 
plaintiff.  The  broker,  while  the  hemp  was  remaining 
there  in  his  name,  contracted  for  the  sale  of  hemp  on 
his  own  account  to  H.  &  Co.,  and  having  none  of  his 
own  to  deliver,  transferred  the  plaintiff's  hemp  to  H.  & 
Co.,  and  received  the  money.  In  this  case  the  question 
was,  whether  the  broker  had  authority  to  sell — it  is 
clear  that,  as  between  himself  and  the  plaintiff,  his 
principal,  he  had  it  not ;  and  the  only  question  was, 
whetlier  the  latter,  by  permitting  the  broker  to  act  as  he 
had  done  in  the  purchase  and  transfer  of  the  hemp,  was 
bound  by  his  contract  with  respect  to  it,  made  with  a 
person  who  knew  nothing  of  the  broker's  real  authority. 
The  Court  considered  that  the  broker  in  this  case  was 
*a  general  seller  of  hemp ;  that  the  hemp  in  ques- 
tion  was  left  in  the  custody  of  the  wharfinger  L  '^  J 
in  the  broker's  name ;  and  that  no  stranger  could  sup- 
pose that  it  would  be  so  left  in  the  broker's  name,  but 
in  order  that  the  broker  might  dispose  of  it  in  his  or- 
dinary business  as  a  broker  :  and  they  determined,  that, 
the  latter  having  sold  the  hemp,  the  principal  was  bound, 

(m)  15  East,  38. 

437 


423  PARTIES   TO   CONTEACTS.  [lECT.  IX. 

The  same  principle  is  illustrated  by  eases  relating  to 
the  liability  of  the  provisional  committeemen,  or  the 
directors,  or  the  chairman,  of  a  proposed  company  for 
the  contracts  of  other  committeemen,  &c.,  or  the  secre- 
tary. Where  they  give  each  other,  or  the  secretary,  or 
an  original  promoter,  apparently  the  power  to  bind 
them,  they  will  be  liable  upon  contracts  made  by  him 
in  their  names,  although  they  exj)ressly  prohibit  him 
so  to  do ;  or,  though  there  may  be  a  private  arrange- 
ment between  them,  that  he,  and  not  they,  are  to 
be  liable.  Provisional  directors  of  a  projected  joint 
stock  company,  who  were  induced  to  become  such  by 
the  representations  of  the  nominal  secretary  (the  getter 
up  of  the  company),  that  he  would  j^ay  the  preliminary 
expenses,  and  that  they  should  not  be  liable,  passed  a 
resolution  inter  alia  that  the  company  should  be  ad- 
vertised. The  secretary  agreed  with  the  plaintiff  for 
advertising  the  company,  showing  him  the  resolution 
of  the  directors,  but  not  informing  liira  of  the  above 
r*494"l  understanding  with  the  directors.  *The  latter 
were  held  liable  to  the  plaintiff  for  the  adver- 
tisements [n). 

There  is  a  series  of  instances,  showing,  that  where  a 
man  appoints  another  to  act  for  him  in  any  line  of 
business,  he  is  bound  by  contracts  made  by  him  ac- 
cording to  usage  therein,  which  instances,  although  they 
consist  of  disputes  between  the  principal  and  agent, 
and  not  like  those  we  have  been  considering  between 
the  principal  and  the  party  with  whom  the  agent  has 
contracted,  throw  a  great  deal  of  light  upon  tlie  obliga- 
tion of  the  principal  derived  from  the  ordinary  mode 
of  transacting  business,  and  in  that  point  of  view  it  will 

(n)  Maddick  v.  Marshall,  16  C.  B.  (N.  S.)  (Ill  E.  C.  L  E.)  387;  17  C.  B. 
(N.  S.)  (112  E.  C.  L  E.),  Ex.  Ch,,  829 ;  Eiley  v.  Packington,  L.  E.  2  C.  P. 
636;  36  L.J.  (C.  P.)  204. 

438 


TiECT.  IX.]  CX)NTIIACTS   BY   AGES-TS.  424 

be  useful  to  mention  some  of  tliem  here.  The  first  of 
these  instances  is  that  of  Sutton  v.  Tatham  (<?),  where  a 
person  employed  a  broker  to  sell  250  shares  in  the  South 
Australian  Company ;  he  was  in  an  error  as  to  the  num- 
ber ;  he  meant  to  say  50  shares,  and  in  reality  he  had 
no  more.  The  broker  contracted  with  another  broker 
on  the  Stock  Exchange  for  the  sale.  The  shareholder 
on  the  next  day  informed  his  broker  of  the  mistake, 
and,  finding  the  bargain  could  not  be  made  void,  re- 
quested him  to  do  the  *best  he  could.  By  the  r*49--| 
rules  of  the  Stock  Exchan2;e,  in  sales  of  this 
description,  if  the  vendor  is  not  prepared  to  complete 
his  contract,  the  purchaser  buys  the  requisite  number 
of  shares,  and  the  vendor's  broker  is  bound  to  makeup 
the  loss,  if  any,  resulting  from  a  difference  in  prices. 
Accordingly,  the  vendor  being  unable  to  complete  his 
contract,  and  the  purchaser  having  bought  the  requisite 
number  of  sliares  at  a  loss,  the  broker  paid  the  differ- 
ence, and  was  held  by  the  Court  of  Queen's  Bench  en- 
titled to  recover  that  difference  from  his  principal  the 
shareholder.  "For,"  said  Mr.  Justice  JMiledale,  "a 
person  who  employs  a  broker  must  be  supposed  to 
give  him  authority  to  act  as  other  brokers  do.  It  does 
not  matter  whether  or  not  he  himself  is  acquainted 
with  the  rules  by  which  brokers  are  governed."  "I 
consider  it  to  be  clear  law,"  said  Mr.  Baron  Parke,  in  the 
subsequent  case  of  Bayliffe  v.  Butterw^orth  {p),  "  that 
if  there  is  at  a  particular  place  an  estabHshed  usage  in 
the  manner  of  dealing  and  making  contracts,  a  person 
who  is  employed  to  deal  or  make  a  contract  there,  has 
an  implied  authority  to  act  in  the  usual  way ;  and  if  it 

(o)  10  A.  &  E.  (37  E.  C.  L.  R.)  27.  See  Ilayworth  v.  Knight,  33  L.  J.  (C. 
P.)  298;  Robinson  v.  MoUett,  L.  R.  7  11.  L.  802,  44  L  .T.  {C.  P.)  362,  revers- 
ing MoUett  V.  Robinson,  L.  R.  5  C.  P.  646;  7  C.  P.  84 ,  89  L.  J.  (C.  P.)  290; 
41  lb.  65. 

{p)  1  Exch.  428 

439 


425  PARTIES   TO   CONTEACTS.  [lECT.  IX. 

be  tlie  usage  that  he  should  make  the  contract  in  his 
own  name,  he  has  authority  to  do  so.  It  appears  to  me, 
that  a  person  who  authorizes  another  to  contract  for  him, 
authorizes  him  to  make  tliat  contract  in  the  usual  way." 
r*49ri  '^^^^^  ^^  *^^^  been  held,  that  one  who  employs  a 
broker  to  buy  railway  shares  for  him,  authorizes 
him  by  that  employment  to  do  all  that  is  needful  to 
complete  the  bargain  [q)  ;  and,  therefore,  where  the 
defendant  employed  a  broker  and  member  of  the  Stock 
Exchange  to  buy  some  shares  for  him  in  the  Vale  of 
Neath  Railway  at  30s.  discount,  and  at  the  time  of  the 
purchase  a  call  had  been  made  but  was  not  payable,  and 
the  seller  of  the  shares,  in  order  to  enable  him,  the 
seller,  to  transfer  them,  paid  the  call,  which  the  de- 
fendant refused  to  allow ;  and  the  broker,  being  re- 
sponsible by  the  rules  of  the  Exchange  for  the  comple- 
tion of  the  contract,  paid  it ;  the  broker  was  allowed  to 
recover  the  money  so  paid  from  the  defendant,  the  pur- 
chaser of  the  shares.  The  meaning  of  this  contract 
clearly  was,  that  the  purchaser  should  become  the 
owner  of  the  shares  upon  payment  of  all  such  sums 
which  the  prior  holders  might  have  paid  or  become 
liable  to  pay  in  respect  of  them,  less  oOs.  The  au- 
thority, therefore,  given  to  the  plaintiff,  enabled  him  to 
buy  the  shares,  and  to  incur  a  liability  to  pay  all  that 
had  been  paid  upon  them  and  that  they  then  stood 
charged  with,  less  30s. 

But  although,  if  a  person  employs  a  broker  to  trans- 
act business  for  him  upon  a  market  with  the  usages  of 
whii^h  he,  the  principal,  is  unacquainted,  he  gives  au- 
r*49'"l  thority  to  the  broker  to  make  contracts  *upon 
the  footing  of  such  usages,  provided  they  are 
such  as  regulate  the  mode  of  performing  the  contracts 
and  do  not  change  their  intrinsic  character,  yet  if  on 

iq)  Bayley  v.  Wilkins,  7  C.  B.  (62  E.  C.  L.  E.)  886. 

440 


LECT.  IX.]  CONTRACTS    BY    AGENTS.  427 

the  other  hand  the  custom  or  usage  is  of  such  a  char- 
acter as  to  be  completely  at  variance  with  the  relation 
between  the  broker  and  principal,  it  is  not  binding  on 
the  principal,  who  is  ignorant  of  the  usage  (r).^ 

Again,  the  power  of  the  master  of  a  ship  to  bind  his 
owners  being  but  a  branch  of  the  general  law  of  agency, 
it  is  clear  that  when  a  master  contracts  as  such  in  a  for- 
eign port  to  carry  goods  for  a  foreigner,  his  authority 
to  bind  his  owner  is  that  conferred  by  the  law  of  the 
country  to  which  his  ship  belongs ;  and  the  flag  of  his 
ship  is  notice  to  all  the  world  that  his  implied  authority 
is  limited  by  the  law  of  tliat  flag  (s).  Where  a  de- 
fendant carried  on  the  business  of  horsedealer,  and  S., 
who  assisted  him  in  his  business,  and  was  also  himself 
a  horsedealer,  sold  for  him  a  horse  to  the  plaintiff,  and 
warranted  him  to  be  sound,  it  w^as  lield  that,  it  being 
withiri  the  scope  of  a  horsedealer's  business  to  give  a 

(r)  Robinson  v.  Mollett,  L.  R.  7  H.  L.  802,  44  L.  J.  (C.  P.)  362,  reversing 
Mollett  V.  Robinson,  L.  R.  5  C.  P.  646 ;  lb.  7  C.  P.  84;  S^  C.  39  L.  J.  (C.  P.) 
290;  41  lb.  65. 

(s)  Lloyd  V.  Guibert,  33  L.  J.  (Q.  B.)  241;  35  lb.  74  ;  L.  R.  1  Q.  B.  115 

(Ex.Ch.)' 

'  In  order  that  a  rule  or  custom  should  be  binding  upon  a  principal  who 
had  no  notice  of  it,  it  has  been  held  that  it  must  be  reasonable.  Thus  in 
Evans  v.  Wain,  71  Pa.  St.  75,  Williams,  J.,  said:  "Such  a  custom,  if  proved, 
would  have  constituted  no  defence  to  the  plaintiff's  action.  If  there  is  a 
custom  among  stockbrokers,"  he  continued,  "  when  dealing  with  others,  to 
appropriate  money  belonging  to  the  principal  to  the  payment  of  his  broker's 
indebtedness,  the  sooner  it  is  abolished  the  better;  Mains  usus  est  aholendus. 
A  custom  so  iniquitous  can  never  obtain  the  force  or  sanction  of  law."  In  Day 
V.  Holmes,  103  Mass.  309,  Morton,  J.,  said :  "  The  usage  alleged  by  the  plain- 
tiffs to  exist  among  stockbrokers  in  Boston  cannot  avail  them.  There  are  many 
forcible  objections  to  it ;  but  a  conclusive  one  is,  that  it  is  against  sound  policy 
and  good  morals.  It  authorizes  the  broker  in  his  discretion  to  disregard  his 
instructions,  and,  instead  of  acting  solely  in  the  interest  of  his  principal,  to 
speculate  upon  the  transaction  for  his  own  benefit.  It  creates  in  the  agent  an 
interest  adverse  to  hLs  principal,  and  is  inconsistent  with  his  duty  and  the 
obligations  which  the  law  imposes  upon  him  when  he  enters  into  the  contract 
of  agency.  Such  a  usage,  unknown  to  the  principal,  cannot  be  supported." 
See  also  Tomkins  v.  Saffery,  L.  R.  3  App.  Cas  213 ;  Shaw  v.  Spencer,  100  Mass. 
382. 

441 


427  PAKTIES   TO    CONTKACTS.  [lECT.  IX. 

warranty  whenever  the  giving  of  a  warranty  may  form 
^   part  of  the  transaction,  no  ^evidence  was  admis- 
*-        -J  sible  to  show  that  the  defendant  forbade  S.  to 
warrant  {t). 

Of  course  the  principal  would  not  be  bound  by  any 
rule  or  custom  of  trade  made  after  the  transaction  was 
completed,  however  it  might  bind  the  agent  {u) ;  and  it 
will  appear  equally  clear  that  if  he  deviates  from  the 
course  usual  in  the  line  of  business  in  which  he  is 
employed,  he  not  only  has  no  authority  in  fact,  but 
does  not  seem  to  have  any,  and  consequently,  cannot 
bind  his  principal  thereby.  Thus,  although  the  master 
of  a  ship  can  bind  the  owners  by  a  bill  of  lading  for 
goods  received  on  board  the  ship,  a  bill  of  lading, 
although  in  the  usual  terms,  given  by  the  master,  in  an 
instance  where  goods  had  never  been  received  on  board, 
does  not  bind  the  owners  even  in  the  hands  of  an 
assignee.  All  persons  taking  a  bill  of  lading  by  en- 
dorsement or  otherwise,  have  notice  that  the  master's 
authority  is  limited  to  signing  bills  of  lading  for  goods 
received  on  board,  and  must  themselves  bear  the  con- 
sequences of  the  master's  falsehood  {x).  On  a  some- 
what similar  principle,  in  a  case  where  the  defendant 
authorized  an  insurance  broker  at  Liverpool  to  under- 
write policies  not  ^exceeding  a  certain  amount, 
L  J  and  the  broker  acted  in  excess  of  his  authority, 
the  principal  was  held  not  liable,  it  being  the  custom 
at  Liverpool  to  impose  a  secret  limit  on  the  amount 
f(u-  which  an  insurance  broker  can  sign  his  principal's 
name  (y). 

(t)  Howard  V.  Sheward,  L.  K  2  C.  P.  148 ;  36  L  J.  (C.  P.)  42. 

(w)  Westropp  v.  Solomon,  8  C.  B.  (65  E.  C.  L.  R.)  345. 

(x)  Grant  r.  Norway,  20  L.  J.  (C.  P.)  98 ;  10  C.  B.  (70  E.  C.  L.  R.)  665,  -S".  C. 
See  Ilubbersty  v.  Ward,  22  L  J.  (Ex.)  113;  8  Ex.  330;  Coleman  v.  Riches, 
24  L.  J.  (C;.  P.)  125;  16  C.  B.  (81  E.  C.  L.  R.)  104. 

(2/J  Baines  v.  Ewing,  L.  R.  1  Ex.  320 ;  35  L.  J.  (Ex.)  194. 
442 


I  ECT.  IX.]  CONTRACTS   BY   AGENTS.  429 

It  has  no  doubt  been  observed  in  the  examples  just 
given,  that  in  some  of  them  the  extent  of  the  agent's 
authority  is  expressly  prescribed,  in  some  partly  ex- 
pressed and  partly  not  expressed,  and  in  others  alto- 
gether implied.  It  is  implied  from  the  position  or 
capacity  in  which  a  person  acts.  Of  this  description  is 
the  agency  of  factors,  brokers,  of  partners,  wives,  and 
servants,  all  of  whom  have  an  implied  or  constructive 
authority  to  bind  those  for  wdiom  they  act,  or  are  held 
to  act,  as  we  shall  presently  see  more  at  large.  The 
usages  of  trade  form  material  points  in  determining  the 
authority  of  an  agent ;  and  the  custom  of  an  individual 
as  to  the  general  mode  and  scope  of  his  dealings  with 
tradesmen,  would,  as  we  have  seen,  limit  the  implied 
authority  of  his  servants  to  bind  him  by  their  orders. 
Wherever  acts  are  done  inconsistently  with  express 
directions  or  with  the  customary  transactions  from  which 
agency  may  be  implied,  there  is  an  excess  of  authority, 
and  the  principal  is  not  bound.^  In  Flemyng  v. 
Hector  [z],  it  was  held,  on  similar  *grounds,  r:Morv-| 
that  where  there  is  a  managing  committee  of  a 
club  who  choose  to  deal  on  credit  instead  of  for  ready 
money  payments,  which  they  were  alone  authorized  by 
the  members  to  do,  the  members  are  not  bound  by  such 
contracts. 

Many  cases  also  occur  where  there  is  no  such  con- 

{z)  2  M.  &  W.  172.    See  Cockerell  v.  Aucompte,  2  C.  B.  (N.  S.)  (89  E.  C.  L. 
E.)440;26L.J.  (C.  P.)  194. 


'  And  therefore  it  has  been  held,  that  where  tlie  authority  purports  to  have 
been  derived  from  a  written  instrument,  or  the  agent  expressly  signs  the  con- 
tract, "  by  procuration,"  the  party  dealing  with  him  is  put  upon  inquiry,  and 
is  bound  to  examine  the  instrument:  Attwood  v.  Munnings,  7  B.  c*i:  C.  (14  E. 
C.  L.  R.)  278;  Withington  v.  Herring,  5  Bing.  (15  E.G.  L.  R.)  442;  Schim- 
melpennich  v.  Bayard,  1  Pet.  264;  North  River  Bank  v.  Aymar,  3  liilL 
262.— K. 

443 


430  PARTIES    TO    CONTEACTS.  [lECT.  IX. 

structive  or  express  authority  at  the  time  of  the  con- 
tract, but  where  it  has  been  supplied  by  the  subsequent 
assent  or  adoption  of  the  principal,  in  which  case  his 
liability  depends  upon  the  same  general  reason  as 
before.  The  subsequent  ratification  is  equivalent  to  a 
prior  command,  and  the  great  maxim  of  agency,  "  Qui 
facit  per  alium  facit  per  se,"  has  a  retrospective  effect. 
And  such  ratification  may  be  inferred  from  the  conduct 
of  tlie  principal,  as  well  as  expressed  by  him  in  words. 
Thus,  Pollard,  having  sent  a  quantity  of  goods  for  sale 
to  Fernando  Po,  died  intestate.  After  his  death  the 
defendant  purchased  the  goods  from  the  agent  of  the 
inte>tate,  wdio  sold  them  lor  the  benefit  of  the  estate. 
At  the  time  of  sale  no  administration  to  the  intestate 
had  been  granted.  Subsequently  the  plaintiff  took  out 
letters  of  administration.  The  Court,  after  first  laying 
it  down  that  the  title  of  administrator  relates  back  to 
the  death  of  the  intestate,  decided  that  the  plaintiff  had, 
by  suing,  ratified  the  sale  by  the  agent,  and  that  it  was 
no  objection  that  he  was  unknown  to  the  agent  at 
*the  time  of  sale  (a).  But,  as  the  question  is, 
L  '^  J  whetlier  the  principal  did  or  did  not  approve 
of  the  transaction  to  which  it  is  endeavoured  to  make 
him  a  party  through  the  agency  of  another,  it  is  held 
tliat  tiie  former  cannot  ratify  a  part  of  the  trans- 
action and  repudiate  the  rest,  but  must  adopt  the  whole 
or  none  (/>).  But,  where  a  person  at  the  time  of  doing 
an  act  does  not  profess  to  be  therein  acting  as  an  agent, 
there  is  nothing,  strictly  speaking,  to  ratify ;  and 
another  person,  however  interested,  cannot  afterwards, 
by  adopting  the  act,  make  the  former  his  agent,  and 

(a)  Foster  v.  Bates,  12  M.  &  W.  220  ;  Lewis  v.  Read,  13  M.  &  W.  834  ;  Rob- 
inson  v.  Gleadow,  2  Bing.  N.  C.  (29  E.  C.  L.  R.)  156 ;  Freeman  v.  Bosher,  13 
Q.  B.  (66  E.  C.  L.  R.)  780. 

ih)  Wilson  V.  Poiilter,  2  Str,  869 ;  Brewer  v.  Sparrow,  7  B.  &  C.  (14  E.G.  L. 
R.)  310. 

444 


LECT.  [X.]  CONTRACTS    BY    AGENTS.  431 

tliereby  incur  any  liability  or  take  any  benefit  under 
the  unauthorized  act.  This  is  a  rule  of  considerable 
importance,  and  is  fully  explained  in  the  case  of  Wilson 
V.  Tuinman  {c)} 

But  the  rule,  that  the  agent  acting  within  the  extent 
of  his  usual  employment  binds  his  principal,  though 
in  the  particular  case  the  agent  is  exceeding  his  author- 
ity, is  subject  to  the  observation  that  the  person  who 
contracts  with  the  agent  has  not  notice  of  the  limitation 
of  his  authority.  It  is  very  right  that  a  stranger  who 
sees  an  agent  permitted  to  contract  generally  for  his 
principal  in  this  or  that  business  should  be  safe  in  deal- 
ing "''with  him,  on  the  assumption  that  he  has  r:H4Qo-| 
authority.  But  if  he  knows  that  he  has  no 
authority,  in  that  case  to  hold  the  principal  bound  by 
a  contract  made  contrary  to  the  agent's  real  instruc- 
tions, would  be  to  give  effect  to  a  fraud ;  and  accord- 
ingly, wherever  the  person  who  contracts  with  an  agent 
knows  that  that  agent's  authority  is  limited,  and  never- 
theless contracts  with  him  beyond  those  limits,  he  does 
so  at  his  peril,  for  the  principal  is  not  bound  (d).  And 
on  this  account  it  is  wise  and  usual  for  persons  who 
have  been  in  the  habit  of  employing  a  general  agent, 
and  are  desirous  of  discontinuing  him,  to  give  notice  to 
the  world  of  their  intention  in  the  Gazette,  and  to  those 
persons  with  whom  they  are  in  the  habit  of  dealing,  by 
circulars  (e).  For  the  agent,  although  discontinued, 
might  still  make  his  principal  liable  to  those  who  dealt 
with  the  agent,  without  notice  of  the  revocation  of  his 
authority.     This  rule  is  well  illustrated  by  the  case  of 

(c)  6  M.  &  Gr.  (46  E.  C.  L.  K.)  236 ;  Anmi.,  Godbolt,  109. 

(d)  See  Trueman  r.  Loder,  It  A.  &  E.  (39  E.  C.  L.  R.)  689, 

(e)  See  Smith's  Merc.  Law,  9th  ed.  122. 


^  Bearce  v.  Bowker,  115  Mass.  129 ;  Carson  v.  Cummings,  69  Mo.  325. 

445 


432  PARTIES    TO   CONTRACTS.  [lECT.  IX. 

Drew  V,  Nunn  (/).  There  the  plaintiif  was  a  trades- 
man, and  the  defendant  had  given  his  wife  authority  to 
deal  with  the  plaintiff,  and  had  held  her  out  as  his 
agent  and  as  entitled  to  pledge  his  credit.  Afterwards, 
the  defendant  became  insane,  and  whilst  his  malady 
lasted,  his  wife  ordered  goods  from  the  plaintiff,  who 
piqo-i  accordingly  supplied  them.  At  the  *time  ot 
supplying  the  goods  the  plaintiff  was  unaware 
that  the  defendant  had  become  insane.  The  defendant 
afterwards  recovered  his  reason,  and  then  refused  to 
pay  for  the  goods  supplied  to  his  wife  by  the  plaintiff. 
It  was  held  that  even  if  the  insanity  were  so  complete 
as  to  amount  to  a  revocation  of  the  authority  as  between 
the  principal  and  the  agent,  yet  that  as  the  plaintiff  had 
no  notice  of  it  the  defendant  was  liable  for  the  price  of 
the  goods. 

(/)  4  Q.  B.  D.  661 ;  48  L.  J.  (Q.  B.)  591. 


44ti 


*LECTUEE  X.  [*434] 

PRINCIPAL  AND  AGENT. THEIR  RESPECTIVE  LIABILI- 
TIES.  AGENCY  OF  PARTNERS,  BROKERS,  FAC- 
TORS,    WIVES. RECAPITULATION. REMEDIES      BY 

ACTION. STATUTES    OF    LIMITATION. 

Pursuing  the  consideration  of  the  points  arising 
upon  contracts  made  through  the  medium  of  agents, 
and  having  disposed  of  most  of  those  which  relate  to 
the  liability  of  the  principal  upon  them,  the  next  in 
order  is  that  which  regards  his  power  to  take  advantage 
of  them.  Now,  where  the  agent  (a),  when  he  makes 
the  contract,  states  who  his  principal  is,  and  states  that 
he  is  contracting  on  the  behalf  of  that  principal ;  or 
where  (though  there  may  be  no  express  statement  to 
that  effect)  the  circumstances  of  the  transaction  can  be 
shown  to  have  been  so  completely  within  the  knowl- 
edge of  the  parties  to  it  that  there  can  be  no  doubt  that 
it  was  understood  at  the  time  that  the  person  who  actu- 
ally made  the  contract  made  it  as  an  agent,  and  intended 
to  make  it  on  behalf  of  his  principal ;  in  such  cases 
there  can  of  course  be  no  doubt  of  the  principal's  right 
to  take  advantage  of  it,  and  enforce  it  to  the  fullest  ex- 
tent. It  is,  in  *truth,  as  if  he  had  put  his  own  pMoc-i 
hand  to  it.  In  such  cases,  therefore,  there  can 
be  no  difficulty.  But  the  cases  in  which  difficulties 
arise,  are  those  in  which  the  agent,  being  really  only 
the  substitute  for  another,  nevertheless  contracts  in  his 
own  name  as  if  he  were  himself  the  principal.^ 

(a)  Seignior  v.  Wolmer,  Godb.  360. 

»  George  v.  Clagett,  7  T.  R.  359  ;  Purchell  v.  Salter,  1  Q.  B.  (41  E.  C.  L.  R.j 
197  J  Sims  V.  Bond,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  393 ;  Lime  Rock  Bank  v. 

447 


435  CONTRACTS    BY    AGENTS.  [lECT.  X. 

Now,  in  such  a  case,  the  i^rincipal  may  adopt  and 
enforce  the  contract  (b),  but  his  right  to  do  so  is  subject 
to  a  qualification  which  has  been  dictated  by  conimon 
sense  and  public  convenience,  namely,  that,  on  declaring 
himself,  he  stands  in  the  place  of  the  agent  who  made 
it;  so  that  the  other  contracting  party  enjoys  the  same 
rights  against  him  which  he  would  have  enjoyed  tigainst 
the  agent  who  made  it,  had  that  agent  really  been  the 
principal.  For  instance,  if  I  buy  a  parcel  of  goods 
from  A.,  who  sells  tbem  to  me  in  his  own  name,  though 
he  is  really  only  the  factor  of  B.,  whose  property  the 
goods  are,  B.  may,  if  he  think  proper,  declare  himself 
the  principal,  and  require  me  to  pay  the  price  to  liim ; 
but  if  the  factor  owed  me  money  which  I  could  have 
set  off  against  the  price  had  the  factor  sued  me  for  it,  I 
have  the  right  of  setting  it  off  against  B.,  in  like  man- 
ner as  I  might  have  done  against  the  factor.  And  the 
good  sense  and  justice  of  this  is  obvious;  for  it  may  be 
exceedingly  inconvenient,  indeed  ruinous  to  me,  to  pay 

f^.^^-,    *iii  hard  cash  ;  and  my  knowledge  that  I  should 

r  4361  . 

*-        -J    have  this  set-off  may  have  been  my  only  in- 

(b)  Cooke  V.  Seeley,  17  L.  J.  (Ex.)  286 ;  2  Ex.  746,  S.  C. ;  Spurr  v.  Cass,  L- 
E.  6  Q.  B.  656 ;  39  L.  J.  (Q.  B.)  249. 


Plimpton,  17  Pick.  159 ;  Leeds  v.  Marine  Ins.  Co.,  6  Wheat.  570 ;  Violett  v. 
Powell,  10  B.  Mon.  347 ;  Parker  v.  Donaldson,  2  W.  &  S.  21. 

As  the  lecturer  has  elsewhere  expressed  it,  "  in  every  case  in  which  the 
agent  sues  in  his  own  name,  two  consequences,  it  must  be  remembered,  follow : 
1.  That  the  defendant  may  avail  himself  of  those  defences  which  would  be 
good  as  against  the  agent  who  is  the  plaintiff  on  the  record  :  Gibson  v.  Winter, 
6  B.  &  Ad.  (27  E.  C.  L.  R.)  96;  Wilkinson  v.  Lindo,  7  M.  6i  W.  83.  2.  That 
he  may  avail  liimself  of  those  which  would  be  good  as  against  the  principal 
for  whose  use  the  action  is  brought:  Welstead  v.  Levy,  1  M.  &  Rob.  138 :  Meg- 
ginson  v.  Harper,  4  Tyr.  94 ;  Rex  v.  Hardwick,  1 1  East,  578 ;  Harrison  v. 
Vallance,  1  Bing.  (8  E.  C.  L  R.)  45  ;  Smith  v.  Lyon,  3  Camp.  465."  Note  to 
Thomson  v.  Davenport,  2  Sm.  L.  C.  398. — r. 

Huntington  v.  Knox,  7  Cush.  371 ;  Doe  v.  Thompson,  22  N.  H.  217.-^. 

Haverhill  Ins.  Co.  v.  Newhall,  1  Allen,  130 ;  Quigley  v.  De  Haas,  82  Pa.  St. 
267 ;  Bryson  v.  Lucas,  84  N.  C.  680. 

448 


LECT.  X.]  CONTRACTS    BY    AGENTS.  486 

Jucement  to  buy  ;  and  if  I  were  deprived  of  it,  I  should 
be  led  into  a  trap — induced  to  ]:)urchase  upon  one  ground, 
and  forced  to  pay  wpon  a  different  one. 

The  general  rule,  that  a  principal  may  declare  him- 
self, and  take  advantage  of  his  agent's  contract  made 
without  naming  him,  and  this  qualification  of  it  (to  pre- 
vent the  injustice  of  which  it  might  otherwise  be  made 
the  instrument),  are  both  very  clearly  laid  down  in  the 
judgment  in  Sims  v.  Bond  (c)  : — "  It  is  a  well  establislied 
rule  of  law,"  said  the  L.  C.  Justice,  delivering  the 
judgment  of  the  Court  in  that  case,  "that  where  a 
contract  not  under  seal  is  made  by  an  agent  in  his  own 
name  for  an  undisclosed  principal,  either  the  agent  or 
the  principal  may  sue  upon  it^ — the  defendant,  in  the 
latter  case,  being  entitled  to  be  placed  in  the  same  situa- 
tion at  the  time  of  disclosure  as  if  the  agent  had  been 
the  contracting  party."^  This  rule  is  most  frequently 
acted  upon  in  sales  by  factors,  agents,  or  partners,  in 
which  cases  either  the  nominal  or  the  real  contractor 
may  sue,  but  it  may  be  equally  applied  to  other  cases. 
Thus,  in  George  v.  Clagett  (d),^  the  case  was  this:  the 

(c)  5  B.  &  Ad.  (27  E.  C.  L.  R.)  393 ;  Ramazotti  v.  Bowring,  29  L.  J.  (Ch.) 
30. 

(d)  7  T.  R.  359 ;  2  Smitli  L.  C.  118,  8th  ed. ;  Isberg  v.  Bowden,  22  L.  J.  (Ex.) 
322;  8  Ex.  852. 


^  Unless,  indeed,  the  defendant  relied  on  the  plaintiff's  character  as  agent, 
and  would  not  have  contracted  with  him  as  a  principal  if  he  had  known  hira 
so  to  be:  Schraalz  v.  Avery,  3  Eng.  L.  &  Eq.  R.  391.— K. 

^  If,  however,  the  defendant  either  knew,  or  had  the  reasonable  means  of 
knowing  that  he  was  dealing,  not  with  an  agent,  but  with  a  principal,  the  lat- 
ter part  of  the  rule,  as  thus  expressed,  obviously  loses  its  application  :  Baring 
V.  Corrie,  2  B.  &.  Aid.  137 ;  so,  if  the  purcliaser  knew  that  the  seller  was  not 
the  owner  of  the  goods,  but  a  factor — in  such  case,  he  can  have  no  set-off 
against  the  latter,  whether  the  suit  be  brought  in  the  name  of  the  principal  or 
in  his  own  name :  Parker  v.  Donaldson,  2  W.  &  S.  9  ;  for  in  neither  of  these 
cases  is  the  purchaser  deceived. — r. 

*  And  see  the  note  to  that  case  in  2  Sm.  L.  C.  118. — R. 

29  449 


436  CONTRACTS    BY    AGENTS.  [lECT.  X. 

plaintiff,  a  clothier,  employed  Rich  and  Heapy  as  his 
factors,    who,    besides    acting   as    factors,   bought   and 

*sold  great  quantities  of  woollen  cloths  on  their 
'-  -^  own  account,  and  carried  on  all  their  business 
at  one  warehouse.  Rich  and  Heapy  became  largely  in- 
debted to  the  defendants  on  a  bill  of  exchange,  and 
afterwards  the  latter  purchased  woollen  cloths  of  them 
to  an  amount  greater  than  the  debt  on  the  bill.  Part 
of  the  cloths  really  belonged  to  the  plaintiff,  but  the  de- 
fendants did  not  know  it,  and  on  his  suing  the  defend- 
ants for  the  price  of  his  cloth  so  bought  by  them  from 
Rich  and  Heapy,  the  defendants  were  considered  to  be 
entitled  to  set  off  the  debt  of  Rich  and  Heapy  to  them. 
"By  the  statute  of  set-off  (e),"  said  Holroyd,  J.,  in  the 
very  similar  case  of  Carr  v.  Hinchliff (/),  "when  there 
are  mutual  debts  between  a  plaintiff  and  a  defendant, 
the  latter  may  set  off  the  debt  due  to  him  against  that 
which  is  claimed.  The  statute  gives  him  a  right  to  say, 
that  the  debt  claimed  is  paid  by  that  which  is  due  to 
him,  and  that  it  operates  as  an  extinguishment  of  the 
debt.  And  now,  by  analogy  to  the  defence  given  by 
the  statute,  a  defendant  is  also  entitled  to  say  that  his 
debt  is  extinguished  by  another  debt  due  to  him  from 
any  person  who  may  be  identified  wnth  the  plaintiff." 
Even  where  the  defendant  was  aware  that  he  was  deal- 
ing with  an  agent,  a  factor,  but  the  latter  was  accus- 
tomed to  sell  in  his  own  name  when  he  had  any  claim 

against  the  owner  of  the  ^'goods  for  advances, 
L  '  ^  and  the  purchaser,  in  buying  the  goods  in  ques- 
tion, bond  fide  believed  that  the  factor  sold  them  for  the 
purpose. of  satisfying  such  a  claim,  it  was  decided  that 
the  purchaser  was  entitled  to  set  off  the  payments  made 

(e)  2  Geo.  11.,  c.  22  ;  now  repealed  by  46  &  47  Vict.,  c.  49,  s.  4,  but  see  ss.  6, 
7,  of  the  latter  Act. 

(/)  4  B.  &  C.  (10  E.  C.  L.  R.)  553. 

450 


I 


LECT.  X.]  CONTKACTS    BY    AGENTS.  438 

by  him  to  the  factor.  This  was  the  case  of  Warner  v. 
M'Kay  (ff),  where  the  Court  treated  the  question  as  be- 
ing, wliether  the  defendant  had  a  right  to  consider  that 
he  had  paid  the  factors  for  those  goods.  The  only 
doubt  arose  from  the  defendant  being  apprised  that  the 
goods  belonged  to  the  iDlaintiflfs.  But  as  the  factors 
were  accustomed  to  sell  in  their  own  names,  and  did  sell 
these  goods  in  their  own  names,  and  the  jury  having 
found  that  the  defendant  believed  that  they  had  author- 
ity to  sell,  and  was  not  bound  to  inquire  further,  the 
Court  supported  a  verdict  for  the  defendant.  But  if 
the  purchaser  knew  all  along  that  he  was  dealing  with 
an  agent,  he  cannot  set  off,  in  an  action  by  the  principal 
for  the  price  of  goods  bought  by  him  of  the  agent,  a  debt 
due  from  the  agent  to  himself;  for  that  would  be  treat- 
ing the  agent  and  the  principal  as  one,  where  they  are 
not  identified,  and  creating  instead  of  preventing  the  in- 
justice which  the  law  thus  seeks,  by  allowing  a  set-off  of 
this  kind,  to  prevent  (A).  The  real  ^grounds 
on  which  the  before-mentioned  cases  have  been  •-  -I 
decided,  were  stated  by  the  Court  of  Exchequer,  in  Is- 
berg  V.  Bowden  (i),  to  be  "that  when  a  principal  per- 
mits an  agent  to  sell  as  apparent  principal,  and  after- 
wards intervenes,  the  buyer  is  entitled  to  be  placed  in 
the  same  situation  at  the  time  of  the  disclosure  of  the 
real  principal  as  if  the  agent  had  been  the  real  con- 
tracting  party,  and   is   entitled   to   the  same  defence, 

(g)  1  M.  &  W.  591.     See,  however,  the  remarks  on  this  case  in  Fish  t-.  Kemp- 
ton,  7  C.  B.  (62  E.  C.  L.  R.)  687. 

{h)  Fish  V.  Kempton,  7  (\  B.  (62  E.  C.  L.  R.)  687 ;  Dresser  v.  Norwood,  34 
L.  J.  (C.  P.)  48,  Ex.  Ch. ;  Semenza  t>.  Brinsley,  18  C.  B.  (N.  S.)  (114  E.  C.  L.  R.) 
467  ;  34  L.  J.  (C.  P.)  161 ;  Dixon  ex  parte,  in  re  Plenley,  4  Ch.  Div.  133.  See 
also  Mildred  v.  Maspons,  8  App.  Cas.  874,  53  L.  J.  (Q.  B.)  33,  affirming  Mas- 
pons  V.  Mildred,  9  Q.  B.  D.  (C  .A.)  530,  51  L.  J.  (Q.  B.)  604 ;  New  Zealand  and 
Australian  Land  Co.  v.  Watson,  7  Q.  B.  D.  374  (C.  A.),  50  L.  J.  (Q.  B.)  433,  re- 
versing S.  O.  nom.  New  Zealand,  etc.,  Co.  v.  Ruston,  5Q.  B.  D.  474;  49  L.  J 
(Q.  B.)  842. 

(i)  8  Ex.  852. 

451 


439  CONTRACTS   BY    AGluNTS.  [lECT.  X. 

whether  it  be  by  common  law  or  by  statute,  by  payment 
or  by  set-off,  as  he  was  entitled  to  at  that  time  against 
the  agent,  the  apparent  principal."  TJie  principle,  how- 
ever, of  George  v.  Clagett  applies  only  to  what  may  be 
said  to  be  the  proximate  motive  of  dealing  with  the 
factor.  Thus,  it  was  held,  that  in  the  event  of  the  lat- 
ter's  bankruptcy,  the  defendant  would  not  be  allowed  to 
set-off  against  the  princiiDal's  claim,  all  claims  arising 
out  of  mutual  dealings  of  which  defendant  might  have 
availed  himself,  under  ss.  31,  39,  of  the  now  repealed 
statute,  32  &  33  Vict.,  c.  71  (Bankruptcy  Act,  1869). 
The  contingency  of  the  bankruptcy  and  the  mode  of 

^,    .^^    settlino;  accounts  with  the  trustee  '''could  not  be 

r  4401  . 

L         -'    considered  to  have  been  contemplated  when  the 

contract  was  made  with  the  agent  {k).  It  seems  suf- 
ficiently connected  with  these  propositions,  to  add  here, 
that  where  the  principal  does  not  intervene,  but  allows 
the  agent  to  sue  in  his  own  name,  two  consequences  fol- 
low:  1st,  that  the  defendant  may  avail  himself  of  all 
defences  which  would  be  good  against  the  agent,  who  is 
by  the  supposition  the  plaintiff  on  the  record  (/)  ;  2ndly, 
that  he  may  avail  himself  of  those  which  would  be 
good  against  the  principal  for  whose  sole  use  the  action 
has  been  brought  (m). 

Before  leaving  this  subject,  I  will  say  one  word  with 
regard  to  the  situation  of  an  agent  who  contracts  in  the 
manner  I  have  just  mentioned,  without  naming  his 
principal.  It  is  settled  that,  in  such  a  case,  the  other 
contracting  party  may,  when  he  discovers  the  true  state 

(/t)  Turner  v.  Thomas,  L.  R.  6  C.  P.  610 ;  40  L.  J.  (C.  P.)  271.  This  deci- 
sion seems  equally  applicable  to  claims  arising  out  of  mutual  dealings  made 
under  the  similar  sections  of  46  &  47  Vict.,  c.  52  (Bankruptcy  Act,  1883),  viz., 
fis.  37,  38. 

{I)  Gibson  v.  Winter,  5  B.  &  Ad.  (27  E.  C.  L.  R.)  96;  Wilkinson  v.  Lindo, 
7  M.  &  W.  81. 

(m)  May  v.  Taylor,  6  M.  &  Gr.  (46  E.  C.  L.  R.)  261 ;  Megginson  v.  Harper, 
2  C.  &  M.  322. 
452 


LECT.  X.]  CONTRACTS    BY    AGENTS.  440 

of  facts,  elect  to  charge  him  or  his  principal  (/i),  wliich- 
ever  he  may  *tliink  most  for  his  advantage.  r:M4i-i 
Thus,  in  Paterson  v.  Gandasequi  {o),  the  de- 
fendant, who  was  a  Spanish  merchant,  employed  Larra- 
zabal  to  purchase  for  him  various  assortments  of  goods 
for  the  foreign  market,  for  which  he  was  to  charge  a 
commission  of  2  per  cent.  Larrazabal  applied  to  the 
plaintiffs,  and  requested  them  to  send  to  his  counting- 
house  an  assortment  of  the  goods,  with  terms  and  prices. 
Paterson  brought  patterns  of  the  goods  to  the  counting- 
house  with  the  terms  and  prices,  when  Gandasequi  was 
present.  The  samples  were  handed  to  him.  He  in- 
spected them,  selected  such  as  he  required,  and  the 
terms  and  prices  were  shown  to  him,  and  left  ihere; 
subsequently  Larrazabal,  in  pursuance  of  directions 
from  Gandasequi,  ordered  the  goods  from  Paterson. 
The  latter  sold  the  goods  on  the  credit  of  Larrazabal, 
made  out  the  invoices  in  his  name,  and  sent  them  to 
him,  and  Larrazabal  debited  the  amount  to  Gandasequi. 
*"  The  law,"  said  Lord  Ellenborough,  "  has  r^.AA9'\ 
been  settled  by  a  variety  of  cases,  that  an  un- 
known principal,  when  discovered,  is  liable  on  the  con- 
tracts which  his  agent  makes  for  him."  On  the  other 
hand,  if  the  agent  contract  without  naming  any  prin- 
cipal, he  is  himself  the  person  prima  facie  responsible; 

(n)  The  creditor  has  an  election  to  sue  either  the  one  or  the  other ;  but  he 
cannot  after  he  has  sued  the  one  to  judgment  maintain  a  second  action  against 
the  other.  Priestly  v.  Fernie,  34  L.  J.  (Ex.)  172 ;  3  II.  &  C.  977.  The  mere 
fact  of  filing  an  affidavit  of  proof  against  the  estate  of  an  insolvent  agent  to 
an  undiscovered  principal,  after  tliat  undiscovered  principal  is  known  to  the 
creditor,  is  not  a  conclusive  election  by  tlie  creditor  to  treat  the  agent  as  his 
debtor:  Curtit^  v.  Williamson,  L.  R.  10  Q.  B.  57  ;  44  L.  J.  (Q.  B.)  27, 

(o)  15  East,  62;  2  Smith,  L.  C.  360,  8th  ed. ;  see  also  Waring  v.  Favenck,  1 
Camp.  85 ;  Kymer  v.  Suwercropp,  1  Camp.  109 ;  Ileald  v.  Kenworthy,  24  L.  J. 
(Ex.)  76;  10  Exch.  739;  Smethurst  r.  Mitchell,  28  L.  J.  (Q.  B.)  241;  Ris- 
Ijourg  V.  Bruckner,  27  L.  J.  (C.  P.)  90;  3  C.  B  (N.  S.)  (91  E.  C.  L.  R.)  812; 
Greene  v.  Koptree,  25  L.  J.  (C.  P.)  297  ;  18  C  B.  (86  E.  C.  L.  R.)  549  ;  Calder 
V.  Dobell,  L.  R.  6  C.  P.  486 ;  40  L.  J.  (C.  P.)  89,  224. 

453 


442  CONTRACTS    BY    AGENTS.  [lECT.  X. 

and  though  the  other  party  may,  in  most  eases,  elect  to 
charge  the  employer  on  discovering  him,  yet  he  need 
not  do  so,  but  may,  if  he  please,  continue  to  look  to  the 
agent  {p).  He  may  also  elect  to  charge  either  the 
agent  or  his  principal,  where  the  agent,  at  the  time  of 
making  the  contract,  says  that  he  has  a  principal,  but 
declines  to  say  who  that  principal  is  (q)}     It  is  im- 

(p)  Morgan  v.  Corder,  Paley  Prin.  and  Agent,  3rd  edit.  p.  372;  Smith's 
Merc.  Law,  by  Dowdeswell,  9th  edit.  p.  159,  &c. ;  Paterson  t;.  Gandasequi, 
supra. 

(q)  Thomson  v.  Davenport,  9  B.  &  C.  (17  E.  C.  L.  K.)  78 ;  2  Smith  L.  C. 
377,  8th  edit. ;  Cooke  v.  Wilson,  2G  L.  J.  (C.  P.)  15 ;  10.  B.  (N.  S.)  (87  E.  C. 
L.  K.)  153. 


'  [Note  by  Mr.  J.  C.  Symons.]  The  right  to  sue  the  principal  when  dis- 
closed does  not  apply  to  bills  of  excliange  accepted  or  endorsed  by  the  agent 
in  his  own  name  alone,  and  not  per  proc,  for  by  the  law  of  merchants,  a  chose 
in  action  is  passed  by  endorsement,  and  each  party  wlio  receives  the  bill  is 
making  a  contract  with  the  parties  upon  the  face  of  it,  and  with  no  other 
party  whatever.  See  Beckham  v.  Drake,  9  M  &  W.  92,  per  Lord  Abinger, 
C.  B.     [Bank  of  Hamburg  v.  Wray,  4  Strob.  87.] 

Bacon  v.  Sondley,  3  Strob.  542 ;  Perth  Amboy  Manufacturing  Co.  v.  Condit, 
21  N.  J.  659,  unless  the  circumstances  attending  the  contract  are  such  as  to 
show  an  intention  to  look  solely  to  the  one  and  not  to  tlie  other.  If  the  ven- 
dor, knowing  of  tlie  principal,  still  credits  and  looks  to  the  agent  as  the  re- 
sponsible party,  he  of  course  exonerates  the  principal :  Paige  v.  Stone,  10 
Mete.  160 ;  Jones  v.  JEtna.  Ins.  Co.,  14  Conn.  501 ;  Ahrens  v.  Cobb,  9  Humph. 
643;  Violett  v.  Powell,  10  B.  Mon.  347;  Bate  v.  Burr,  4  Harring.  130;  and 
this,  whether  the  latter  has  or  has  not  received  the  property :  Ahrens  v. 
Cobb.  But  it  is  obvious,  that  the  mere  fact  of  charging  the  goods  to  the 
agent,  should  not  raise  a  presumption  that  the  vendor  thereby  meant  to  rely 
solely  on  the  latter,  unless  the  name,  and  perhaps  also  the  situation  and  cir- 
cumstances, of  the  principal  be  also  known  to  the  vendor,  for  certainly  unless 
he  knew  the  name  of  the  principal,  there  can  be  no  opportunity  of  electing 
between  him  and  the  agent :  Lapham  v.  Green,  9  Vt.  407  ;  Edwards  v.  Gold- 
ing.  20  lb.  30;  Henderson  v.  Mayhew,  2  Gill,  393;  and  it  would  seem  that 
unless  he  knew,  also,  something  of  his  circumstances,  the  case  would  be  the 
same  :  Raymond  v.  The  Crown  and  Eagle  Mills,  2  Mete.  319 ;  Upton  v.  Gray, 
2  Me.  374.     See  the  note  to  Thomson  v.  Davenport,  2  Sm.  L.  C.  398  —r. 

Brown  v.  Rundlett,  15  N.  H.  360  ;  Flovey  v.  Pitcher,  13  Mo.  191 ;  Hy.le  v. 
Paige,  9  Barb.  150  ;  Johnson  v.  Smith,  21  Conn.  627 ;  Ogden  v.  Raymond,  l2 
lb.  379 ;  Sydnor  v.  Hurd,  8  Tex.  98.  In  simple  contracts,  if  the  agent  does 
not  disclose  his  agency,  he  binds  himself,  and  so  if  he  exceeds  his  authority: 
Uoyce  V.  Allen,  28  Vt.  234  ;  Hodges  v.  Green,  lb.  358;  Forney  v.  Shipp,  4 

454 


LECT.  X.]  CONTRACTS    BY    AGENTS.  442 

portant  to  bear  in  mind  tlie  rule,  that  this  election, 
when  once  made,  is  binding.  This  is  the  main  point 
which  is  illustrated  by  the  case  of  Paterson  v.  Gandase- 
qui,  already  cited,  when,  under  the  facts  before  described, 
the  Court  laid  down,  that  if  the  seller  of  goods  knows, 
at  the  time  of  making  the  contract  of  sale,  that  the 
buyer,  although  dealing  with  him  in  his  own  name,  is 
in  reality  the  agent  of  another,  and  elects  to  give  credit 
to  the  agent,  he  cannot  afterwards  recover  *tlie  r:;:44q-| 
value  from  the  known  principal.  In  the  sub- 
sequent but  almost  cotemporary  case  of  Addison  v. 
Gandasequi  (r),  the  latter,  who  had  acted  towards  the 
plaintiff  in  a  similar  manner  to  that  described  in  notic- 
ing the  case  of  Paterson  v.  Gandasequi,  was  held  not  to 
be  liable,  Addison  having,  with  full  knowledge  of  the 
facts,  debited  Larrazabal  in  his  books.  In  both  these 
cases  there  was  evidence  that  the  vendor  had  elected  to 
look  to  the  agent  for  payment,  knowing  at  the  time  of 
the  contract,  that  another  person  was  the  principal,  and 
also  knowing  who  that  principal  was ;  but  in  Paterson 
V.  Gandasequi,  there  being  some  doubt  how  far  the 
plaintiff  had  a  perfect  knowledge  of  the  fact  that  the 
defendant  was  the  principal  at  the  time  of  the  contract, 
the  Court  granted  a  new  trial.  There  was  no  such 
doubt  in  Addison  v.  Gandasequi.  In  the  more  recent 
case  of  Thomson  v.  Davenport  (s),  which  was  a  writ  of 
error  brought  on  a  judgment  obtained  in  the  borough 

(r)  4  Taunt.  573 ;  2  Smith  L.  C.  369,  8th  edit.  (s)  Supra,  n.  {q). 


Jones,  527;  McClelian  v.  Parker,  27  Mo.  162;  Murray  v.  Carothers,  1  Mete. 
(Ky.)  71.  A  written  agreement  signed  "A.  B.  by  C.  D.  agent,"  does  not  bind 
the  agent  personally,  although  the  principal  resides  beyond  seas:  Bray  v. 
Kettell,  1  Allen,  80.  When  a  person  proposes  to  act  as  an  agent,  disclosing 
the  name  of  his  principal,  he  assumes  no  personal  responsibility,  unless  he 
acts  fraudulently :  Seery  v.  Socks,  29  111.  313 ;  Baker  v.  ('hanibles,  4  Greene, 
428.  A  party  who  signed  notes  as  president  of  a  bank  which  has  no  legal 
existence  is  personally  liable  on  them:  Allen  i'. Pegram,  16  Iowa,  163. — s. 

455 


443  CONTRACTS    BY    AGENTS.  [lECT.  X. 

Court  of  Liverpool  against  Thomson,  the  plaintiff  in 
error,  one  M'Kune  having  received  an  order  from  Thom- 
son for  the  purchase  of  goods,  ordered  them  from  Daven- 
port &  Co.,  the  plaintiffs  in  the  Court  below,  letting  them 
know  that  they  were  for  his  employer,  but  not  mention- 
ing the  name  of  any  principal.  Davenport  and  Co. 
P4441  ^^™^^  M'Kune  as  ^purchaser  in  the  invoice 
of  the  goods  :  the  Court  considered  that  these 
plaintiffs,  having  treated  M'Kune  as  their  debtor,  whilst 
ignorant  of  the  real  purchaser,  were  not  bound  by  that 
election,  but  might  afterwards  sue  the  principal,  Thom- 
son, for  the  price.  "  I  take  it  to  be  a  general  rule," 
said  Lord  Tenterden,  "  that  if  a  person  sells  goods 
(supposing  at  the  time  of  the  contract  that  he  is  deal- 
ing with  a  principal),  but  afterwards  discovers  that  the 
person  with  whom  he  has  been  dealing  is  not  the  prin- 
cipal in  the  transaction,  but  agent  for  a  third  person, 
though  he  may  in  the  meantime  have  debited  the  agent 
with  it,  lie  may  afterwards  recover  the  amount  from  the 
real  principal ;  subject,  however,  to  this  qualification, 
that  the  state  of  the  account  between  the  'principal  and 
the  agent  is  not  altered  to  the  prejudice  of  the  principal. 
On  the  other  hand,  if,  at  the  time  of  the  sale,  the  seller 
knows,  not  only  that  the  person  who  is  nominally  deal- 
ing with  him  is  not  principal  but  agent,  and  also  knows 
who  the  principal  really  is,  and  notwithstanding  all 
that  knowledge,  chooses  to  make  the  agent  his  debtor, 
dealing  with  him,  and  him  alone,  then  the  seller  cannot 
afterwards,  on  the  failure  of  the  agent,  turn  round  and 
charge  the  principal,  having  once  made  his  election  at 
the  titne  when  he  had  the  power  of  choosing  between 
the  one  and  the  other.  The  present  is  a  middle  case. 
At  the  time  of  the  dealing  for  the  goods  the  plaintiffs 
r*44'^1  ^^^®  informed  that  *M'Kune,  who  came  to 
them  to  buy  the  goods,  was  dealing  for  another, 
456 


LECT.  X.]  COXTRACTS    BY    AGENTS.  445 

that  is,  that  he  was  an  af^ent;  but  they  were  not  in- 
formed who  the  principal  was.  They  had  not,  there- 
fore, at  that  time,  the  means  of  making  their  election. 
It  is  true,  that  they  might  perhaps  have  obtained  those 
means  if  they  had  made  further  inquiry ;  but  they 
made  no  further  inquiry.  Not  knowing  who  the  prin- 
cipal really  was,  they  had  not  the  power  at  that  instant 
of  making  their  election.  That  being  so,  it  seems  to 
me  that  this  middle  case  falls,  in  substance  and  eftect, 
within  the  first  proposition  that  I  have  mentioned, 
the  case  of  a  person  not  known  to  be  an  agent,  and  not 
within  the  second,  where  the  buyer  is  not  merely  known 
to  be  an  agent,  but  the  name  of  his  principal  is  also 
known.  There  may  be  another  case,  and  that  is,  where 
a  British  merchant  is  buying  for  a  foreigner.  Accord- 
ing to  the  universal  understanding  of  merchants  and 
of  all  persons  in  trade,  the  credit  is  then  considered  to 
be  given  to  the  British  buyer,  and  not  to  the  for- 
eigner" (t),  although,  of  course,  a  contract  may  be 
made  by  the  agent  so  as  to  charge  the  foreigner  and 
not  himself  {u).  Indeed,  it  hardly  requires  mention- 
ing, that  the  question,  which  is  liable — *the  r:\:AAn-i 
foreign  principal  or  the  English  agent — is  one 
of  intention  (v),  in  which  the  fact,  that  the  principal 
debtor  is  a  foreigner  residing  abroad,  renders  it  highly 
improbable  that  the  credit  should  have  been  given  to 
him  {or). 

(0  See  Wilson  v.  Zulueta,  19  L.  J,  (Q.  B.)  49  ;  14  Q.  B.  (68  E.  C.  L.  R.) 
405,  S.  C. ;  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.,  at  p.  605,  41  L.  J.  Q.  B.,  at  p. 
257 ;  Elbinger  Actien-Gesellschaft  v.  Clave,  L.  E.  8  Q.  B.  313,  42  L.  J.  (Q.  B.) 
151;  Hutton  v.  Bullock,  L.  R.  8  Q.  B.  331. 

(«)  Mahoney  v.  Kekul^,  23  L.  J.  (C.  P.)  54 ;  14  C.  B.  (78  E.  C.  L.  R.)  390, 
S.  C. 

{v)  Green  v.  Koptree,  25  L.  J.  (Ch.)  297 ;  Deslandes  v.  Gregory,  20  L.  J. 
(Q.  B.)  93 ;  S.  C.  in  Ex.  Ch.,  30  L.  J.  (Q.  B.)  36. 

{x)  Lennard  v.  Robinson,  24  L.  J.  (Q.  B.)  275;  5  E.  &  B.  (85  E.  C.  L.  R.) 
125. 

457 


446  CONTRACTS   BY   AGEXTS.  [lECT.  X. 

But  there  is  this  qualification  to  the  right  of  elec- 
tion [y),  namely,  that  if  the  state  of  accounts  between 
the  agent  and  principal  have  been  altered,  so  that  the 
principal  would  be  [unjustly]  subjected  to  a  loss  by  the 
other  contracting  party's  election,  the  right  of  election 
is  in  such  case  lost.  Suppose,  for  instance,  I  employ  A. 
to  purchase  goods,  and  he  j)urchases  them  from  B.  in 
his  own  name ;  now  B.,  when  he  discovers  me  to  be  the 
real  principal,  may  elect  whether  he  will  treat  me  or 
my  agent  A.  as  his  debtor ;  but  if,  in  the  meantime,  I 
have  paid  A.  [under  circumstances  which  w^ould  make 
it  unjust  for  B.  to  treat  me  as  still  his  debtor  (2)],  he 
will  lose  that  right,  since  otherwise  I  should  have  to 
pay  the  price  twice  over.  Still,  this  qualification  is 
itself  subject  to  a  minor  one,  namely,  that  the  principal 
cannot,  by  prematurely  and  improperly  settling  with 
r*447l  ^^^®  agent,  deprive  the  other  ^contracting  party 
of  his  right  of  election.  Suppose,  for  instance, 
as  in  the  case  I  have  just  put,  that  I  employ  A.  to  pur- 
chase goods,  not  for  ready  money,  but  at  three  months' 
credit.  A.  purchases  in  his  own  name  from  B. ;  B., 
before  the  three  months  have  elapsed,  discovers  the  true 
state  of  affairs,  and  elects  to  take  me  as  his  debtor.  I 
should  not  be  allowed  to  say,  in  this  case,  "  You  are 
too  late;  I  have  settled  with  A.,  my  agent."  The 
answer  would  be,  "  You  had  no  occasion  to  do  so  pend- 
ing the  time  of  credit ;  and  you  cannot,  by  doing  so, 
deprive  B.  of  his  right  to  elect  you  as  his  debtor  "  [a)} 

(y)  As  already  mentioned  in  the  judgment  of  Lord  Tenderden  just  quoted. 

(z)  See  Heald  v.  Kenworthy,  10  Ex.  739 ;  24  L.  J.  (Ex.)  76 ;  Armstrong  v. 
Stokes,  L.  R.  7  Q.  B.  598 ;  41  L.  J.  (Q.  B.)  253. 

(a)  Thomson  v.  Davenport,  supra;  and  Kymer  v.  Suwercropp,  1  Camp. 
109. 

'  [Note  by  Mr.  J.  C.  Symons  ]  The  cases  in  which  an  agent  is  personally 
liable,  and  may  be  sued  on  the  contract  he  makes,  may  be  thus  classed: — 

In  the  first  place,  he  is   liable,  according   to   the   doctrine   in   Thomson   v. 

458 


LECT.  X.]  CONTRACTS    BY    AGENTS.  447 

In  the  case  of  Kjmer  v.  Suwercropp,  Lord  ^lien- 
borough  said,  "A  person  selling  goods  is  not  confined  to 
the  credit  of  a  broker  who  buys  them,  but  may  resort 


Davenport,  where  the  principal  was  not  disclosed  at  the  time  of  the  contract ; 
but  if  lie  were  known,  and  credit  given  to  him  at  the  time,  the  agent  cannot 
be  afterwards  sued,  provided  he  acted  within  the  scope  of  his  authority :  Pat- 
ton  V.  Brittain,  10  Tred.  8. 

In  the  second  place,  the  agent  is  liable,  as  we  have  already  stated,  where  he 
exceeds  his  authority,  or  represents  himself  to  have  an  authority  which  he 
has  not,  the  want  of  authority  being  unknown  to  the  other  party :  Jones  v. 
Downman,  4  Q.  B.  (45  E.  C.  L.  R.)  235  ;  [Dusenbury  v.  Ellis,  3  Johns.  Gas. 
70;  Meech  v.  Smith,  7  Wend.  315  ;  "VYoodes  v.  Dennett,  9  N.  H.  55;]  for  in 
such  cases  the  creditor  has  no  remedy  against  the  principal :  Wilson  v.  Bar- 
throp,  2  M.  &  W.  863.^  Here  again,  however,  arises  a  question,  as  we  have 
seen,  how  far  Smout  v.  Ibery  (supra)  is  good  law,  and  that  the  agent  is  to  be 
held  liable  where  it  cannot  be  proved  that  he  fraudulently  misrepresented  his 
authority.  But  that  case  clearly  decides  anotlier  very  important  point, 
namely,  that  where  a  man  has  been  in  the  habit  of  dealing  with  the  plaintifl 
for  household  goods,  the  wife  is  not  liable  for  such  as  are  supplied  to  her  after 
his  death,  but  before  information  of  his  death  had  been  received,  she  having 
had  originally  full  authority  to  contract,  and  done  no  wrong  in  representing 
her  authority  as  continuing,  nor  omitted  to  state  any  fact  within  her  knowl- 
edge, relating  to  it ;  the  revocation  itself  being  by  the  act  of  God,  and  the 
continuance  of  the  life  of  the  principal  being  equally  within  the  knowledge  of 
both  parties. 

In  the  third  place,  an  agent  is  liable  for  himself  and  his  heirs  under  seal, 
for  the  act  of  the  principal,  though  he  describes  himself  in  the  deed  as  cove- 
nanting for  and  on  behalf  of  such  other  person  :  Hancock  v.  Hodgson,  4  Bing. 
(13  E.  C.  L.  R.)  269 ;  Appleton  v.  Binks,  5  East,  148.^ 

An  agent  is  liable,  in  the  fourth  place,  where  he  contracts  in  writing  in  his 


'  Hampton  v.  Speckenagle,  9  S.  &  E.  212,  unless,  of  course,  the  principal 
should  have  subsequently  ratified  the  agent's  act :  Bragg  v.  Fessenden,  1 1  111. 
544  ;  Fitzsimmons  v.  Joslin,  21  Vt.  129  ;  but  such  ratification  by  the  principal 
must  be  shown  to  have  been  made  with  a  full  knowledge  of  the  facts,  and  an 
understanding  that  he  would  not  be  liable  unless  he  did  so  ratify  :  Fletcher  v. 
Dysart,  9  B.  Mon.  413.— E. 

^  Burrell  v.  Jones,  3  B.  &  Aid.  47  ;  Sumner  v.  Williams,  8  Mass.  162  ;  Bel- 
den  V.  Seymour,  8  Conn.  24 ;  Whiting  v.  Dewey,  15  Pick.  433 ;  Donahoe  v. 
Emery,  9  Mete.  66  ;  Mason  v.  Caldwell,  5  Gilm.  196.  It  has,  however,  been 
held,  in  a  few  cases,  that  where  a  person  expressly  covenants  in  his  representa- 
tive capacity,  "and  not  otherwise,"  he  will  not  be  personally  liable,  as  no  false 
confidence  of  security  is  excited  on  the  part  of  the  purchaser:  Thayer  v. 
Wendell,  1  Gall.  37,  per  Story,  J. ;  Day  v.  Brown,  2  Ohio,  347 ;  Mani'fee  v. 
Morrison,  1  Dana,  208  ;  Craddock  i'.  Stewart,  6  Ala.  77. — B. 

459 


447  CONTRACTS   BY    AGENTS.  [lECT.  X. 

to  the  principal  on  whose  account  they  are  bought; 
and  he  is  no  more  affected  by  the  state  of  accounts  be- 
tween the  two  than  I  should  be  were  I  to  deliver  goods 
to  a  man's  servant  pursuant  to  his  order,  by  the  con- 
sideration of  whether  the  servant  was  indebted  to  the 
master,  or  the  master  to  the  servant.  If  he  lets  the  day 
of  payment  go  by,  he  may  lead  the  principal  into  a  sup- 
position that  he  relies  solely  on  the  broker ;  and  if,  in 
r*44K1  ^^^^  case,  the  price  of  the  goods  has  been  paid 
to  the  broker  on  account  of  this  deception,  *the 


own  name,'  unless  it  appears  on  the  face  of  the  contract  that  he  did  so  only  as 
an  agent, '^  otherwise  he  will  not  be  allowed  to  give  parol  proof  that  he  con- 
tracted as  agent,  so  as  to  relieve  himself  from  responsibility.  But  parol  evi- 
dence may  nevertheless  be  given  to  charge  an  unknown  principal,  as  it  does 
not  deny  that  the  contract  is  binding  on  those  whom,  on  the  face  of  it,  it  pur- 
ports to  bind,  but  shows  that  it  also  binds  another  by  reason  that  the  act  of 
the  agent  in  signing  the  agreement  in  pursuance  of  his  authority  is,  in  law, 
the  act  of  the  principal:  Higgins  v.  Senior,  8  M.  &  W.  844,  per  Parke,  B. 
See  also  Jones  v.  Littledale,  1  N.  ifc  P.  (36  E.  C.  L.  K.)  677 ;  Magee  v.  Atkin- 
son, 2  M.  &  W.  440. 

1  Burrell  v.  Jones,  3  B.  &  Aid.  47 ;  Hopkins  v.  Mehaffy,  11  S.  &  K.  129  ; 
Kirkpatrick  v.  Stainer,  22  Wend.  244 ;  Taintor  v.  Prendergrast,  3  Hill,  72 ; 
Simonds  v.  Heard,  23  Pick.  121.— R. 

^  In  Higgins  v.  Senior,  the  point  actually  decided  was,  that  a  defendant  could 
not  shift  a  liability  from  his  own  shoulders  to  that  of  another,  by  showing  that 
a  contract  which  purported  to  be  signed  on  his  own  account  was,  in  reality, 
signed  as  agent  for  another ;  and  the  same  has  been  held  in  this  country,  even 
in  cases  where  the  party  signed  as  agent,  but  not  naming  the  principal :  Peritz 
V.  Stanton,  10  Wend.  277;  Stackpole  v.  Arnold,  11  Mass.  27;  Alfridson  v. 
Ladd,  12  lb.  175;  Bradlee  v.  Glass  Co.,  16  Pick.  347.  But  in  Higgins  i-. 
Senior,  it  was  further  suggested,  as  had  also  been  done  in  Jones  v.  Littledale, 
that  a  distinction  existed  between  evidence  to  discharge  a  defendant^  and  evi- 
dence to  charge  an  additional  party ;  as,  in  the  latter  case,  the  evidence 
would  not  contradict  the  written  instrument,  but  only  show  that  it  bound 
another  party. — R. 

It  is  no  defence  to  an  action  on  the  individual  note  of  an  agent  that  it  was 
given  for  the  debt  of  his  principal,  and  that  of  this  fact  the  plaintiff  had 
knowledge :  Bass  r.  Randall,  1  Minn.  404 ;  Haverhill  Ins.  Co.  v.  Newhall,  1 
Allen,  130.  A  written  contract,  to  which  one  has  without  authority  affixed 
the  name  of  another,  but  not  his  own,  binds  neither  :  Hegeman  v.  Johnson, 
36  Barb.  200.— s. 

460 


LECT.  X  ]  CONTKACTS    BY    AGENTS.  448 

principal  shall  be  discharged.  But  in  this  case,  pay- 
ment was  demanded  of  the  defendant  on  the  several 
days  it  became  due,  and  no  reason  was  given  him  to 
believe  that  the  broker  alone  was  trusted.  The  defend- 
ant had  received  a  great  part  of  the  goods  ;  the  right  of 
the  vendors  was  entire  unless  the  defendant  had  paid 
the  price  to  them,  or  to  some  person  authorized  by  tliem 
to  receive  it.  The  broker  had  no  such  authority ; 
therefore  the  defendant  is  liable."  In  that  case,  as 
observed  by  the  Court  of  Common  Pleas,  in  the  subse- 
quent case  of  Smyth  v.  Anderson  ib),  Lord  Ellenborough 
must  be  considered  as  having  properly  decided  that  the 
defendant  had  no  right  to  set  up  a  payment  accepted  by 
the  brokers  contrary  to  their  duty,  and  not  made  by 
him  in  conformity  with  the  obligation  which  the  con- 
tract imposed  upon  him. 

In  the  case  of  Smyth  v.  Anderson  (c),  just  mentioned, 
Melville  ordered  of  the  plaintiffs  certain  goods,  telling 
them  they  were  for  shipment  to  Bombay,  pursuant  to 
orders  received.  They  were  in  fact  ordered  for  Ander- 
son, and  were  received  by  him ;  but  Melville  could  not 
say  whether,  at  the  time  of  giving  the  order,  the  name 
of  Anderson  was  mentioned.  The  invoices,  however, 
sent  afterwards,  described  the  goods  as  "  bought  on 
account  of  Anderson,  Bombay,  per  Melville,  London, 
by  Pender  &  Co.,  agents"  (the  plaintiffs).  In  rjH44Q-| 
^payment  for  those  goods,  the  plaintiffs  drew 
bills  upon  Melville,  which  bills  were  dishonoured. 
Melville  had  a  general  account  with  Anderson,  on 
which,  at  the  time  of  his  stopping  payment,  he  was 
debtor  to  Anderson  in  a  large  amount.  There  was  no 
evidence  of  any  payment  by  him  to  Melville  applicable 
to  these  good  in  particular ;  but  shortly  after  the  ship- 

(6)  7  C.  B.  (62  E.  C.  L.  B.)  39. 

(c)  18  L.  J.  (C.  P.)  109 ;  7  C.  B.  (62  E.  C.  L.  K.)  21,  S.  C. 

461 


449  CONTRACTS   BY   AGENTS.  [leCT.  X. 

merit  of  tliem,  Melville  sent  Anderson  an  account 
debiting  him  with  the  amount  of  the  bills,  and  the 
latter  had  since,  but  before  they  became  due,  remitted 
to  Melville  an  amount  more  than  sufficient  to  cover 
them.  "Melville,"  said  Ifaule,  J.,  "having  become 
insolvent,  Anderson  is  sued  for  the  price,  and  the  ques- 
tion is,  whether  it  is  fair  and  reasonable  he  should  be 
so  charged.  The  plaintiffs  got  what  they  considered  an 
advantage,  the  security  of  Melville,  and  must  be  taken 
to  have  requested  that  all  might  be  done  that  was 
necessary  and  incident  to  that  arrangement;  and,  there- 
fore, the  remittance  made  by  Anderson  to  provide  for 
the  bills,  which  was  the  natural  and  proper  course  to 
be  taken  by  him,  was  substantially  made  with  the 
cognizance  and  at  the  request  of  the  plaintiffs;  can 
they  then  be  permitted  to  call  upon  the  defendant  to 
pay  the  price  of  the  goods  over  again  ?  I  think  it  a 
clear  and  satisfactory  case  of  non-liability  on  the  part 
of  the  defendant,  who,  in  the  course  of  a  transaction 
to  which  the  plaintiffs  themselves  were  parties,  has  done 
that  which,  substantially,  is  a  payment  in  the  ordinary 
r*4'^01  course  of  ^business.  The  fact  that  the  money 
was  paid  before  the  bills  became  due,  does  not 
prevent  the  defendant  from  availing  himself  of  this  de- 
fence. When  all  the  parties  are  living  in  this  country, 
and  the  agent  has  not  accepted  bills  on  account  of  the 
goods,  so  that  the  duty  of  putting  him  in  funds  by  a 
previous  remittance  does  not  arise,  if  the  principal  pays 
the  broker  before  the  proper  time  has  arrived,  and 
without  the  privity  of  the  seller,  one  can  perceive  the 
justice  of  not  permitting  the  principal  to  set  up  such 
premature  payments  in  answer  to  the  seller's  claim  on 
him  for  the  price." 

The  qualification  or  exception  to  the  rule  as  to  the 
right  of  election  of  the  seller  is  given  somewhat  differ- 
462 


LECT.  X.]  CONTRACTS    BY    AGExVTS.  450 

ently  by  Mr.  Justice  Blachburn,  in  Armstrong  v. 
Stokes  {d),  viz.,  "that  nothing  has  occurred  to  make  it 
unjust  that  the  undisclosed  principal  should  be  called 
upon  to  make  the  payment  to  the  vendor."  But  he 
observes  that  it  is  not  very  accurately  defined ;  and  the 
same  observation  applies  to  the  qualification  as  given 
ante,  p.  *446.  It  certainly  must  not  be  assumed  that  a 
mere  payment  by  the  principal  to  his  agent,  altliough 
bond  fide,  and  free  from  the  blame  of  a  premature  settle- 
ment, will  absolve  the  principal  from  the  duty  of  seeing 
that  the  agent  pays  the  money  over  to  the  seller  {e). 
And  in  Heald  v.  *Ken worthy,  just  cited,  Parke,  pMri-i 
B.,  was  strongly  of  opinion  (in  which  Pollock, 
C.  B.,  and  Alderson,  B.,  concurred)  that  there  was  "no 
authority  for  saying  that  a  payment  made  to  the  agent 
precludes  the  seller  from  recovering  from  the  principal, 
unless  it  appears  that  he  has  induced  the  principal  to 
believe  that  a  settlement  has  been  made  with  the  agent," 
i.  e.,  by  the"  seller,  in  consequence  of  which  belief  the 
principal  pays  the  agent.  This  opinion,  indeed,  in 
Armstrong  v.  Stokes  (/),  seems  to  have  been  thought 
to  narrow  the  qualification  to  the  seller's  right  of  elec- 
tion too  much,  for  there  Mr.  Justice  Blackburn,  in  a 
judgment  in  which  all  the  authorities  are  most  care- 
fully reviewed,  observes  that  Parke,  B.,  "  makes  no 
exception  as  to  the  case  where  the  other  side  made  the 
contract  with  the  agent  believing  him  to  be  the  princi- 
pal, and  continued  in  such  belief  till  after  the  payment 
was  made ;"  and  further  on  he  says,  "  We  think  that, 
if  the  rigid  rule  thus  laid  down  were  to  be  applied  to 
those  who  were  only  discovered  to  be  principals  after 
they  had  fairly  paid  the  price  to  those  whom  the  vendor 

(d)  L.  K.  7  Q.  B.  598,  604 ;  41  L.  J.  (Q.  B.)  253,  256. 

(e)  Heald  v.  Kenworthy,  10  Exch.  739 ;  24  L.  J.  (Ex.)  76 
(J)  L.  R.  7  Q.  B.  609,  610;  41  L.  J.  (Q.  B.)  259. 

463 


451  CONTRACTS    BY    AGENTS.  [lECT.  X. 

believed  to  be  the  principals,  and  to  whom  .'ilone  the 
vendor  gave  credit,  it  would  produce  intolerable  hard- 
ship." In  this  case,  accordingly,  where  the  defendants 
(the  undisclosed  principals),  after  the  contract  was 
r*4^91  '^^^^^s  ^^^^  i^  consequence  of  it,  bond  fide  and 
•■''without  moral  blame  paid  the  agent  at  a  time 
when  the  plaintiff  (the  vendor)  still  gave  credit  to  the 
agents,  and  knew  of  no  one  else ;  the  Court  held  that, 
after  that,  it  was  too  late  for  the  vendor  to  recover 
against  the  undisclosed  principal.  It  is  to  be  observed, 
however,  that  the  agents  here  were  commission  mer- 
chants, not  brokers.  If  they  had  been  the  latter,  the 
vendor  would  not  have  supposed  he  was  contracting 
with  principals.  The  opinion,  however,  of  Parhe,  B., 
is  approved  by  the  Court  of  Appeal  in  the  more  recent 
cases  of  Irvine  v.  Watson  {g)  and  Davison  v.  Donald- 
son (A) ;  so  that  it  seems  necessary  in  order  to  deprive 
the  seller  of  his  right  of  election  that  there  should  have 
been  some  conduct  on  his  part  which  caused  the  settle- 
ment between  the  principal  and  his  agent;  in  which 
case  it  would  be  obviously  unjust  that  the  seller  should 
have  recourse  to  the  principal. 

An  agent  making  and  signing  a  contract  as  such 
would  in  general,  in  the  absence  of  a  custom  to  the 
contrary,  not  be  liable  or  entitled  to  sue  upon  it  {i). 
r*4  "*^"I  ^^^'  "  ^"  every  contract,  if  the  agent  *chooses 
to  make  himself  a  contracting  party,  the  other 
contracting  23arty  may  either  sue  the  agent  who  has 
himself  contracted,  though  on  behalf  of  another,  or  he 
may  sue  the  principal  who  has  contracted  through  his 

{g)  5  Q.  B.  D.  414,  affirming  the  decision  of  Bmoen,  J.,  lb.  102;  49  L.  J.  Q. 
B.  531,  539.     In  this  case  the  agents  were  brokers. 

{h)  9  Q.  B.  D.  623. 

(i)  Fleet  v.  Murton,  L.  R.  7  Q.  B.  129,  41  L.  J.  (Q.  B.)  49  ;  Fisher  v.  Marsh, 
5  B.  &  S.  (118  E.  C.  L.  R.)  416;  34  L.  J.  (Q.  B.)  177,  178;  Hutchinson  v. 
Tatham,  L.  R.  8  C.  P.  482;  42  L.  J.  (C.  P.)  260. 
464 


LECT.  X.]  PARTNEES.  45B 

agent ;  ami  tliis,  whether  the  principal  was  known  at  the 
time  or  not,  or  whether  it  was  or  was  not  known  that 
he  was  a  principal"  {k).  And  he  is  bound  if  he  signs 
the  contract  in  his  own  name  without  qualification  un- 
less it  is  apparent  from  other  portions  of  the  document 
that  he  did  not  intend  to  sign  as  principal ;  but  in 
order  to  protect  the  agent  who  so  signs,  a  mere  description 
of  him  in  the  body  of  the  document  as  agent  for 
another,  even  if  that  other  is  named,  is  not  suffi- 
cient (/).  Where  in  such  a  case  the  agent  is  liable,  so 
also  he  lias  a  right  to  sue  {7n)} 

The  law  of  agency  derives  much  illustration  from 
cases  decided  upon  partnership  contracts,  for  '*  all  ques- 
tions between  partners,"  as  expressed  by  Parke,  B.,  in 
the  case  of  Beckham  v.  Drake (ti),  "are  no  more  than 
illustrations  of  the  same  questions  as  between  principal 
and  agent."  It  is  thought,  therefore,  that  some  leading 
principles  of  '""the  law  of  contracts,  as  it  re- 
spects  this  species  of  agency,  may  be  useful  ^  ^ 
here,  as  further  illustrating  what  has  been  said  before, 
and  also  as  giving  some  insight  into  that  important  head 
of  law  to  which  it  directly  pertains. 

Partnership  is  the  result  of  a  contract  whereby  two 
or  more  persons  agree  to  combine  property  or  labour  for 
the  purpose  of  a  common  undertaking,  and  the  acquisi- 
tion of  a  common  profit  (o).  One  party  may  contribute 
all  the  money,  or  all  the  stock,  or  all  the  labour  neces- 

[k)  Per  Blackburn,  J.,  in  Christoffersen  v.  Hansen,  L.  R.  7  Q.  B.,  at  p.  513; 
41  L.  J.  (Q.  B.)  218. 

{I)  Paice  V.  Walker,  L.  R.  5  Ex.  173 ;  38  L.  J.  (Ex.)  109 ;  Hough  v.  Maii- 
zaiios,  4  Ex.  Div.  104 ;  48  L.  J.  (Q.  B.,  etc.)  398 ;  and  the  notes  to  Thomson 
V.  Davenport,  2  Smith's  L.  C.  400,  8th  edit. 

(m)  Fisher  r.  Marsh,  supra. 

(n)  9  M.  &  W.  98. 

(o)  Smith's  Merc.  Law,  9th  edit.,  by  Dowdeswell,  p.  19. 


^  See  American  note  to  Thomson  v.  Davenport,  2  Sm.  L.  C,  8th  ed.,  398. 

30  465 


454  CONTRACTS    BY   AGENTS.  [lECT.  X. 

sary  for  tlie  purj)oses  of  the  firm.  But,  in  order  to 
make  people  liable  as  i^artners  to  each  other,  it  is  neces- 
sary that  there  should  be  a  community  of  profits  (j?), 
although  one  of  them  may  stipulate  to  be  indemnified 
against  loss(2').  This,  however,  respects  their  mutual 
claims,  for,  however  they  may  stipulate  with  each  other, 
all  who  authorize  the  business  to  be  carried  on  (?•), 
and  all  who  allow  themselves  to  be  described  and  held 
out  as  partners,  are  liable  as  such  to  those  to  whom 
they  have  so  held  themselves  out  (s).  It  was  formerly 
thought  that  the  taking  a  share  in  the  profits  by  itself 
J.  rendered  such  a  "^'participator  liable  quoad  third 

L  -■  persons,  but  it  is  now  settled  that  that  is  not  so. 
"  The  real  test  of  the  liability  of  any  one  to  third  par- 
ties as  a  copartner  is,  whether  or  not  the  other  person 
or  persons  conducting  the  business  were  his  agents  to 
carry  it  on.  This  was  decided  by  the  unanimous  judg- 
ment of  the  House  of  Lords  in  Wheatcroft  and  Cox  v. 
Hickman  (t)  overruling  the  authorities  to  the  contrary, 
and  reversing  the  decision  in  the  same  case  of  the  Com- 
mon Pleas  and  of  the  Exchequer  Chamber"  [u).  Still 
the  participation  of  profits  is  in  general  a  sufficiently 
accurate  test  and  the  right  of  participation  in  profits 
affords  cogent,  often  conclusive,  evidence  of  a  partner- 
ship (v). 

Supposing  then  the  parties  to  have  become  partners, 

(p)  Hoare  v.  Dawes,  1  Doug.  371. 

{q)  Bond  V.  Pittard,  3  M.  &  W.  357 ;  Hickman  v.  Cox,  25  L  J.  (C.  P.)  277  ; 
18  C.  B.  (86  E.  C.  L.  R.)  617. 

(r)  Wheatcroft  and  Cox  v.  Hickman,  9  C.  B.  N.  S.  (99  E.  C.  L.  E.)  47 ;  8 
II.  of  L.  C.  268 ;'  30  L.  J.  (C.  P.)  125. 

(s)  Dickenson  v.  Valpy,  10  B.  &  C.  (21  E.  C.  L.  E.)  140;  Fox  v.  Clifton,  6 
Bing.  (19  E.  C.  L.  E.)  793. 

(<)  Sup)-a,  note  (?•). 

(w)  Note  to  Waugh  v.  Carver,  1  Smith,  L.  C,  p.  926,  8th  edit. 

(v)  See  per  Lord  Oi-anworth  in  Cox  v.  Hickman,  9  C.  B.  N.  S.  (99  E.  C.  L. 
B.)  47,  92 ;  8  H.  of  L.  C.  268,  306 ;  30  L.  J.  C.  P.  125,  139.  See  also  per 
Thesiger,  L.  J.,  in  Ex  parte  Delhasse,  In  re  Megevand,  7  Ch.  Div.  511,  529. 

466 


LECT.  X.]  PARTNERS.  455 

the  result  is  tliat  each  individual  partner  constitutes  the 
others  his  agents  for  the  purposes  of  entering  into  all 
contracts  for  him  within  the  scope  of  the  partnership 
concern,  and,  consequently,  that  he  is  liable  to  the  per- 
formance of  all  such  contracts  in  the  same  manner  as 
if  entered  into  personally  by  himself  {x).  It  follows  at 
once,  that  in  general  no  new  member  can  be  *in- 
troduced  into  the  partnership  without  the  con-  ^  ^ 
sent  of  all  the  partners  (y) ;  for  to  do  so  would  be  for 
an  agent  to  appoint  an  agent  in  the  matter  of  the  agency, 
which,  as  we  have  seen,  cannot  in  general  be  done.  It 
follows,  also,  from  the  same  principle,  that  where  there 
is  no  specific  authority,  the  individual  members  will  be 
liable  upon  the  partnership  contracts,  or  not,  according 
as  the  contract  is  in  the  ordinary  course  of  the  partner- 
ship business  or  not.^     Thus,  it  has  been  held,  that  one 

(x)  Fox  V.  Clifton,  6  Bing.  (19  E.  C.  L.  E.)  776,  792;  Hawtayn  v.  Bourne,  7 
M.  &.  W.  595. 

(y)  M'Neill  v.  Eeid,  9  Bing.  (23  E.  C.  L.  E.)  68. 


'  Thus,  a  partner  cannot  bind  the  firm  by  a  submission  to  arbitration  or  by 
a  confession  of  judgment:  Adams  v.  Bankart,  supra;  Karthaus  v.  Ferrer,  I 
Pet.  222;  Barlow  v.  Reno,  1  Blackf.  252;  Grazebrook  r.  M'Creedie,  9  Wend. 
437  ;  Harper  v.  Fox,  7  W.  &  S.  142  ;  "  because  it  would  bind  the  persons  and 
separate  estates  of  tlie  members,  and  thus  transcend  the  limits  of  partnership 
authority  ;"  nor  can  one  partner  give  a  separate  creditor  an  order  on  a  debtor 
of  the  firm :  McKinney  r.  Bright,  16  Pa.  St.  399 ;  or  otherwise  apply  partner- 
ship effects  to  the  payment  of  his  own  debts:  "Yale  v,  Yale,  13  Conn.  185; 
Rogers?.  Batchelor.  12  Pet.  230;  Livingston  v.  Ilastie,  2  Cai.  249;  Modde- 
well  V.  Keever,  8  W.  &  S.  63 ;  Dob  v.  Halsey,  16  Johns.  34 ;  Langan  v.  Hewett, 
13  Sm.  &  M.  122. 

As  a  general  rule,  nothing  is  better  settled  than  that  the  general  power  of  a 
partner  does  not  extend  so  far  as  to  enable  him  to  bind  the  firm  by  a  specialty  : 
Van  Deusen  v.  Blum,  18  Pick.  229;  Clement  v.  Brush,  3  Johns.  Cas.  180; 
Cummins  v.  Cassily,  5  B.  Mons.  74 ;  Posey  v.  Bullitt,  1  Blackf.  99 ;  though  if 
the  instrument  were  executed  in  the  presence  of  and  by  the  direction  of  his 
copartner,  it  would  be  the  deed  of  b3th:  Ball  v.  Dunsterville,  4  T.  E.  313; 
Overton  v.  Tozer,  7  Watts,  331;  Ludlow  v.  Simond,  2  Cai.  Cas.  1,  42,  55; 
Mackay  v.  Bloodgood,  9  Johns.  285 ;  Henderson  v.  Barbee,  6  Blackf.  26,  28. 
But  in  Gram  v.  Seton,  1  Hall,  262  and  Cady  v.  Shepherd,  11  Pick.  400,  it  was 
determined,  after  much  consideration  of  all  the  authorities,  that  a  partner 

467 


'456  CONTEACTS   EY    AGENTS.  [lECT.  X. 

partner  has  no  implied  authority  to  bind  his  copartner 
by  a  submission  to  arbitration  (2;),  or  by  a  guaranty  (a) 

(2)  Adams  v.  Bankart,  1  C.  M.  &  R.  681. 
(a)  Brettel  v.  Williams,  4  Exch.  C23. 

i' 

may  bind  his  copartner  by  a  contract  under  seal,  in  the  name  and  for  the  use 
of  the  firm,  in  the  course  of  the  copartnership  business,  provided  the  other 
partner  assents  to  the  contract  previously  to  its  execution,  or  afterwards 
ratifies  and  adopts  it,  and  this  assent  or  adoption  may  be  by  parol,  and  such  a 
conclusion  is  perhaps  noAV  sustaine<l  by  the  weight  of  authority  :  Pike  v.  Bacon, 
21  Me.  280;  Swan  v.  Stedman,  4  Mete.  548;  Bond  v.  Aitkin,  6  W.  &  S.  165; 
Lucas  r.  Sanders,  1  McMull.  311;  Fleming  v.  Dunbar,  2  Hill  (S.  C.)  532; 
McCart  V.  Lewis,  2  B.  Mon.  267  ;  Davis  v.  Burton,  4  111.  41 ;  Hatch  v.  Craw- 
ford, 2  Port.  54. 

It  has  moreover  been  determined  that  if  the  act  of  one  partner  be  a  good 
and  valid  act  in  itself,  it  will  not  l)e  rendered  the  less  so  if  done  by  a  specialty, 
provided  the  seal  do  not  vary  the  liability :  Deckard  v.  Case,  5  Watts,  22 ; 
Henessy  v.  Western  Bank,  6  W,  &  S.  301  ;  Tapley  v.  Butterfield,  1  Mete  515  ; 
which  cases,  and  many  others  upon  the  subject  of  the  power  of  a  partner  to 
bind  the  firm,  the  student  will  find  classified  in  the  note  to  Livingston  v, 
Eosevelt,  1  Am.  L.  C.  460.— R. 

See  farther,  on  the  extent  of  the  power  of  one  partner  to  bind  the  firm : 
EoUins  V.  Stevens,  31  Me.  454;  Doremus  v.  McCormick,  7  Gill,  49;  Price  v. 
Alexander,  2  Greene,  427;  Lang  v.  Waring,  17  Ala.  145;  Huchoz  v.  Grand- 
jean,  1  Mich.  367  ;  Mills  v.  Dickson,  6  Rich.  487 ;  Drake  v.  Brander,  8  Tex. 
351.  The  authority  of  partners,  active  and  silent,  is  limited  to  the  business 
of  the  partnership:  Bell  v.  Faber,  1  Grant,  31  ;  Cayton  r.  Hardy,  27  Mo.  536  ; 
Barnard  v.  Lapeer,  6  Mich.  274  ;  Scott  v.  Bandy,  2  Head,  197 ;  Boardman  v. 
Adams,  5  Iowa,  224 ;  Stockwell  v.  Dillingham,  50  Me.  442 ;  Welles  v.  March, 
30  N.  Y.  344. 

The  promise  of  one  partner  that  the  firm  will  pay  the  debts  of  a  third  per- 
son is  not  binding  on  his  copartners ;  the  authority  of  a  partner  over  his 
copartners  does  not  extend  so  far:  McQuewans  v.  Hamlin,  35  Pa.  St.  517; 
Selden  v.  Bank,  3  Minn.  166.  Generally  it  is  not  within  the  scope  of  business 
to  accept  accommodation  bills:  Mechanics'  Bank  v.  Livingston,  33  Barb.  458 ; 
Bowman  v.  Cecil  Bank,  3  Grant,  33  ;  nor  to  subscribe  to  the  stock  of  a  corpora- 
tion :  Livingston  v.  Pittsburgh  R.  R.  Co.,  2  Grant,  219.  But  see  Maltby  v. 
Northwestern  R.  R.  Co.,  16  Md.  422.  A  partner  binds  his  firm  only  on  the 
theory  of  an  implied  agency  forthe  purposes  of  the  mutual  adventure,  and  the 
agency  does  not  extend  beyond  what  may  be  fairly  regarded  as  coming  within 
its  reach :  Hotchin  v.  Kent,  8  Mich  520 ;  Loudon  Society  v  Hagerstown  Bank, 
36  Pa.  St.  498.  A  contract  creating,  in  fact,  a  new  partnership  between  two 
different  firms,  though  both  engaged  in  the  same  business,  cannot  be  made  on 
behalf  of  either  firm  by  a  single  member  thereof,  but  requires  the  consent  of 
all  the  members :  Buckingham  v.  Hanna,  20  Ind.  110.  As  to  the  power  of  one 
partner  to  bind  the  firm  by  a  promissory  note :  Gray  v.  Ward,  18  111.  32 ; 
Kimbro  V.  Bullitt,  22  How.  256;  Dow  v.  Phillips,  24  111.  249.-8. 
468 


LECT.  X.]  PARTNERS.  456 

respecting  the  matters  of  the  partnership :  for  it  is 
clear  that  such  |)0\ver  does  not  arise  out  of  the  relation 
of  pai'tiiership,  and  is  not,  therefore,  to  be  inferred 
from  it;  and,  where  it  is  relied  upon,  it  must,  like 
every  other  authority,  be  proved  either  by  express 
evidence,  or  by  such  circumstances  as  lead  to  the  pre- 
sumption of  such  an  authority  having  been  conferred. 
Tims,  also,  in  Hasleham  v.  Young  {b),  where  persons 
v^ere  in  partnership  as  attorneys,  and  one  of  them 
gave  an  undertaking,  that,  in  consideration  that  the 
plaintiff  in  an  action  would  discharge  the  defendant  in 
that  action,  who  was  in  custody  under  an  execution 
therein,  they,  the  attorneys,  would  pay  the  plaintiff 
*tlie  debt  and  costs  on  a  certain  day,  and  he  pii^rr^i 
signed  it  with  the  partnership  name :  the  Court 
considered  it  a  very  clear  case  that  tlie  guaranty  was 
not  given  in  the  usual  course  of  business,  and  no 
authority  being  shown,  that  the  firm  was  not  liable. 
There  is  nothing,  however,  to  prevent  the  parties  from 
confining  the  credit  to  an  individual  partner;  and  it  is 
a  question  for  the  jury  whether  this  has  or  has  not 
been  done.  Where  there  has  been  nothino;  to  discharsie 
a  partner  from  his  liability,  or  to  rebut  the  presump- 
tion of  authority  to  pledge  his  credit  arising  from  the 
mere  fact  of  his  being  a  partner,  he  is  clearly  liable ; 
but  where  there  are  facts  to  show  that  it  was  the  intent 
of  the  contracting  parties  to  restrict  the  credit  to  one 
of  several  partners,  the  liability  is  limited  by  such 
intent.  Cases  of  this  description  occur  where  the 
partner  represents  himself  as  the  only  person  compos- 
ing the  firm.  Thus,  in  De  Mautort  v.  Saunders  (c), 
Saunders  (not  the  defendant)  and  Wiehe  drew  a  bill  at 
the  Mauritius  on  Saunders  Brothers  (the  defendants) 

(5)  5  Q.  B.  (48  E.  C.  L.  R.)  833. 
(e)  1  B.  «&  AiL  (20  E.  C.  L.  11.)  398. 

469 


457  CONTRACTS   BY   AGENTS.  [lECT.  X. 

in  London,  payable  to  Bougier,  wlio  endorsed  it  to  the 
j)laintiff,  and  the  defendants  accepted  the  bill.  On 
being  sued  upon  it  they  set  up  as  a  defence  that  they 
were  in  partnership  with  Wiehe  &  Saunders  and  were 
liable  jointly  with  them.  The  Court  held,  that  the 
verdict,  which  was  for  the  plaintiff,  was  proper,  and 
r*4^S1    *obs6i"ved,   that   it   was   for   the  jury   to   say 

whether  the  plaintiff,  when  he  took  the  bill, 
had  any  reason  to  know  that  Wiehe  &  Saunders  were 
partners  in  the  house  in  London  on  which  the  bill  was 
drawn.  It  was  incumbent  on  the  defendants  to  show 
that  the  plaintiff  had  trusted  the  other  two ;  for,  if  a 
person  contract  with  two  other  persons,  knowing  them 
alone  in  the  transactions,  he  may  sue  them  only.  If, 
indeed,  after  the  contract  be  made,  he  discover  that 
they  had  a  secret  partner  who  had  an  interest  in  the 
contract,  he  is  at  liberty  to  sue  that  secret  partner 
jointly  with  them,  but  he  is  not  bound  so  to  do.  On 
the  other  hand,  where  an  action  was  brought  for  the 
price  of  coals  delivered  to  the  defendant  under  the 
name  of  Bush  &  Co.,  it  appeared  that  for  some  time 
before  the  coals  were  ordered  the  partnership  consisted 
of  Bush  and  the  defendant,  K.  Smith ;  that,  on  Bush's 
death,  before  the  coals  were  supplied,  W.  Smith  be- 
came a  partner  with  defendant,  and  so  continued,  but 
they  carried  on  their  trade  under  the  old  name  of 
Bush  &  Co. ;  and  that  W.  Smith  had  not  ordered  the 
coals :  it  was  contended,  that  W.  Smith  should  have 
been  sued  conjointly  w^ith  the  defendant.  The  Court 
decided  that,  the  partnership  having  been  fully  proved, 
the  defendant  would  not  be  liable  singly  unless  he  led 
the  plaintiff  to  believe  that  he  alone  constituted  the 
r*4^Q1    ^'^^  ^^   Bush  &  Co.   (d).     *"If/'  said  Lord 

Abinger,  C.  B.,  in  the  case  just  cited, "  a  person, 

(d)  Bonfield  v.  Smith,  12  M.  &  W.  405. 

470 


LECT.  X.]  PAETXERS.  459 

contracting  with  another  for  goods,  delivers  an  invoice 
made  out  to  a  firm,  and  nothing  is  said  as  to  the  j)ersous 
composing  it,  he  takes  his  chance  wlio  are  the  partners  in 
that  firm.  If,  indeed,  the  party  represents  himself  as  the 
only  person  composing  the  firm,  an  action  may  be 
brought  against  him  alone ;  or  if,  on  being  asked  who 
his  partners  are,  he  refused  to  give  any  information, 
that  might  be  evidence  for  the  jury  to  say  whether  he 
did  not  hold  himself  out  as  solely  liable." 

The  result  is,  that  the  liability  arising  from  the  naked 
fact  of  partnership  is  prima  facie  the  liability  of  all 
the  partners,  but  that  may  be  rebutted  by  direct  evi- 
dence that  credit  was  not  given  to  the  partnership,  but 
to  an  individual  member  of  it  (e).  This  doctrine  is 
very  strongly  corroborated  by  the  case  of  Holcroft  v. 
Hoggins  (/).  The  jilaintifif  had  been  engaged  to  write 
articles  in  the  Newcastle  Advertiser,  by  a  person  who, 
at  the  time  of  the  contract,  had  become  in  fact  the  sole 
proprietor  of  the  newspaper,  and  the  two  defendants 
were  sought  to  be  made  liable,  in  consequence  of  their 
having  suffered  their  names  to  remain  as  registered  pro- 
prietors of  the  newspaper,  in  the  declaration  nv-Anryi 
^required  to  be  filed  by  6  &  7  Will.  IV.,  c.  76,  •-'  -• 
they  having  previously  been  proprietors  of  the  news- 
paper, but  having  ceased  to  be  so  before  the  contract 
was  entered  into.  It  was  adjudged  that  not  only  were 
the  defendants  not  liable,  but  that  the  fact  of  their  being 
co-proprietors  was  immaterial,  though  they  had  held 
themselves  out  as  such,  if  it  were  shown  that  another 
partner  contracted  with  the  plaintiff  in  such  a  manner 
that  credit  was  given  to  him  and  not  to  them.     And 


(c)  Ante,  p.  *4o7  ;  Peacock  f.  Peacock,  2  Camp  45;  Beckham  i-.  Knight,  4 
■Bing.  N.  C.  (33  E.  C.  L.  R.)  243  ;  1  M.  &  Gr.  (39  E.  C.  L.  R.)  738,  Ex(-h.Ch.; 
Brett  V.  Beck  with,  26  L.  J.  (Ch.)  130. 

(/)  2  C.  B.  (52  E,  C.  L.  R.)  488 ;  15  L.  J.  (C.  P.)  129,  S.  O. 

471 


460  CONTRACTS    BY   AGENTS.  \_LEin.  X. 

the  Court  thought  that  the  evidence  was,  that  the  con- 
tract was  made  by  the  sole  proprietor,  upon  his  own 
sole  resiionsibility,  and  not  upon  that  of  the  defend- 
ants. It  was  true  that,  on  the  register  at  the  stamp- 
office,  they  held  themselves  out  as  proprietors,  and  if  it 
had  been  shown  that  the  plaintiff  was  thereby  induced 
to  enter  into  the  contract,  they  might  have  been 
liable. 

It  must  also  be  shown  that  the  debt  for  which  an 
action  is  brought  accrued  during  the  time  the  party 
sued  was  actually  in  partnership.  He  will  be  liable 
neither  for  contracts  made  before  he  became  a  part- 
ner {ff),  nor  after  he  ceases  to  be  one  (A),  provided  he 
gives  proper  notice  of  his  retirement  {i). 
r*4fill  ^^'^  ^^^^  been  long  held  that  dormant  partners 
are  equally  liable  with  ostensible  partners  upon 
all  contracts  made  for  the  firm  during  their  partner- 
ship ;  on  the  principle,  not  perhaps  very  satisfactory, 
that  the  dormant  partner,  being  entitled  to  all  the 
profits  of  the  contract  made  by  the  firm  to  which  he 
belongs,  ought  also  to  share  in  the  liability ;  and  that 
having  a  right  moreover  to  sue  others  on  it  (k),  he 
ought  not  to  be  protected  from  being  sued  on  it  by 
them  :  for  ^'Qui  seniit  commodum  sentire  debet  et  onus.'* 
It  is  therefore  decided  that,  as  an  undisclosed  principal 
may  be  liable  as  soon  as  he  is  discovered,  subject  to  all 
the  equities  between  the  parties,  so  may  an  undisclosed 
partner :  and  he  may  be  made  liable  on  a  written  con- 
tract not  under  seal,  to  which  he  is  not  expressly  a 

iff)  Vere  v.  Ashby,  10  B.  &  C.  (21  E.  C  L.  K.)  288  ;  Battley  v.  Lewis,  1  M. 
&  Gr.  (39  E.  C.  L.  R.)  155  ;  Beale  v.  Mouls,  10  Q.  B.  (59  E.  C.  L.  R.)  976; 
Whitehead  v.  Barron,  2  M.  &  Rob.  248. 

(A)  Heath  v.  Sanson,  4  B.  &  Ad.  (24  E.  C.  L.  E.)  172. 

[i)  Parkin  v.  Carruthers,  3  Esp.  248  ;  AVilliams  v.  Keats,  2  Stark.  (3  E.  C. 
L.  R.)  290;  Dolman  v.  Orchard,  2  Car.  &  P.  (12  E.  C.  L.  K.)  104;  Moorsom 
V.  Bell  2  Camp.  616. 

(A)  Robson  V.  Drummond,  2  B.  &  Ad.  (22  E.  C.  L.  E.)  308. 

472 


LECT.  X.]  PAETNEl.*.  461 

party,  if  it  be  made  out  that  lie  is  a  party  to  it  in  point 
of  law,  and  that  he  lias  authorized  the  other  partners  to 
sign  it  on  his  behalf  (l). 

Nominal  partners  are  as  liable  as  dormant  ones,  not 
because  they  are  principals  for  whom  others  are  agents, 
but  on  the  ground  that  credit  has  been  given  to  them, 
and  it  is  just  to  the  creditor  that  they  should  be  re- 
sponsible for  the  result  of  so  holding  themselves  out  to 
the  world.  Indeed,  it  would  be  higly  prejudicial  to 
commerce  to  allow  *a  wealthy  man  by  the  loan  r^-tAcoi 
of  his  name,  to  give  other  persons  a  fictitious 
credit  in  the  world,  and  then  refuse  to  satisfy  creditors 
who  had  made  their  advances  upon  the  faith  of  his 
apparent  responsibility  (m).  But  the  claims  for  which 
a  partner  merely  nominal  is  liable,  must  arise  out  of 
credit  really  given  to  the  fact  that  he  was  a  partner 
when  the  credit  was  given.  The  jury  must  be  satisfied 
that  the  plaintiff  bond  fide  believed  that  the  partner 
sought  to  be  charged  was  really  such  [n). 

A  general  notice  is  sufficient  to  discharge  partners 
who  retire  from  firms  as  regards  the  world  at  large ; 
but  an  express  notice  is  requisite  to  discharge  them  as 
regards  previous  customers.  This  being  given,  the  re- 
tiring partner  is  eflPectually  discliarged  from  all  debts 
subsequently  accruing;  nor  can  he  be  made  liable 
by  any  unauthorized  use  of  his  name  by  his  previous 
partners  (o),  though  his  liability,  as  well  as  his 
power  to  make  admissions,  or  to  release  or  sue  for 
debts  contracted  during  his  partnership,  of  course  re- 
mains. 

(/)  Beckham  r.  Drake,  9  M.  &  W.  79  ;  11  M.  &  W.  315,  in  Exch.  Ch. 

(m)  Waugh  v.  Carver,  2  H.  Bl.  235 ;  1  Smith  L.  C.  908,  8tli  edit. 

{n)  Dickenson  v.  Valpy,  10  B.  &  C.  (21  E.  C.  L.  R.)  128;  Lake  i-.  Duke  of 
Argyll,  6  Q.  B.  (51  E  C.  L.  R.)  477 ;  Wood  v.  Duke  of  Argyll,  6  M.  &  G.  (46 
E.  C.  L.  K.)  928. 

(o)  Abel  V.  Sutton,  3  Esp.  108. 

473 


462  CONTEACTS    BY   AGENTS.  [lECT.  X. 

In  Farrar  v.  Deflinne  (p),  the  defendant  had  been  a 
r*4rS1  ^^ormant  partner,  but  ceased  to  be  so  before 
'^'the  debts  accrued  for  which  the  action  was 
brought.  The  plaintiff  had  known  of  the  partnership), 
but  the  dissolution  not  having  been  advertised,  he  had 
no  knowledge  of  it.  Mr.  Justice  Cresswell  said,  in 
Bumming  ujd  the  case:  "The  law  stands  thus:  if  there 
had  been  a  notorious  partnership,  but  no  notice  had 
been  given  of  the  dissolution  thereof,  the  defendant 
would  have  been  liable.  If  there  had  been  a  general 
notice,  that  would  have  been  sufficient /or  all  but  actual 
custo7ners  ;  these,  however,  must  have  had  some  kind  of 
actual  notice.  If  the  partnership  had  remained  pro- 
foundly secret,  the  defendant  could  not  have  been 
affected  by  transactions  which  took  jolace  after  he  had 
retired ;  but  if  the  partnership  had  become  known  to 
any  person  or  persons,  he  would  be  in  the  same  situa- 
tion as  to  all  such  persons,  as  if  the  existence  of  the 
partnership  had  been  notorious." 

Where  bills  are  drawn  by  partners  in  trade,  the  gen- 
eral authority  implied  by  the  custom  of  merchants  binds 
each  partner ;  but  not  so  where  the  partnership  is  not 
of  a  commercial  nature,  such  as  that  of  attorneys,  for 
instance,  in  which  case  it  must  be  shown  that  the  party 
accepting  or  drawing  had  special  anthority  to  do  so,  even 
where  it  is  done  in  the  name  of  the  firm  {q).  Where 
one  partner  signs  for  the  firm,  being  authorized  to  do 
'•'so,  and  describes  himself  as  signing  for  the 
L  J  firm,  he  is  not  separately  liable,  but  the  firm 
alone  (r).     If  he  accepts,  professing  to  have  authority 


(p)  1  Car.  &  K.  (47  E.  C.  L.  R.)  580. 

(q\  Hedley  v.  Bainbridge,  3  Q.  B.  (43  E.  C.  L.  R.)  316 ;  Levy  v.  Pyne,  1 
Car.  &  M.  (41  E.  C.  L.  R.)  453. 

(r1  Ex  parte  Buckley,  In  re  Clarke,  14  M.  &  W.  469,  overruling  Hall  v.  Smith, 
1  B.  &  C.  (8  E.  C.  L.  R.)  407. 
474 


LECT.  X.]  BEOKERS.  464 

which  he  has  not,  a  bill  addressed  to  the  firm,  he  makes 
himself  liable  thereby  (s). 

It  will  be  concluded  from  the  nature  of  partnership 
authority,  that  partners  are  not  liable  for  the  fraudulent 
contracts  of  a  copartner,  if  they  can  prove  the  knowl- 
edge of  the  fraud  by  the  plaintiff  (^).  Neither  are  they 
bound  where  an  express  warning  was  given  to  the  plain- 
tiff by  the  partners  sought  to  be  charged. 

Tliere  are  two  other  classes  of  agents  so  commonly 
employed,  and  that  upon  business  so  important,  that  a 
few  propositions  of  law  respecting  them  "will  be  useful ; 
these  are  brokers  and  factors.  Factors  are  entrusted 
with  the  possession  of  the  property  they  are  to  dispose 
of;  brokers  are  entrusted  with  the  disposal,  but  not 
with  the  possession  {u) }  The  latter,  therefore,  are  mere 
middle  men  between  the  two  parties  contracting,  and 
*cannot  sue  in  their  own  name  upon  contracts  r-<..pirn 
made  by  them  as  brokers  (x) .  Neither  are  they  ^  -■ 
in  general  liable  upon  contracts  so  made ;  although  they 
may  be  made  so  where  tliere  is  an  usage  in  the  particu- 
lar trade  to  make  the  broker,  though  contracting   as 

(s)  Owen  V.  Van  Uster,  10  C.  B.  (70  E.  C.  L.  R.)  318;  20  L.  J.  (C  P.)  61, 
S.  C;  Nicholls  v.  Diamond,  23  L.  J.  (Ex.)  1 ;  9  Ex.  154,  S.  C. 

(i)  Musgrave  v.  Drake,  5  Q.  B.  (48  E.  C.  L.  R.)  185. 

(«)  '  A  broker  for  sale  is  a  person  making  it  a  trade  to  find  purcliasers  for 
those  who  wish  to  sell,  and  vendors  for  those  who  wish  to  buy,  and  to  nego- 
tiate and  superintend  the  making  of  the  bargain  between  them."  Blackburn  on 
the  Contract  of  Sale,  p.  81. 

(x)  Fairlie  v.  Fenton,  L.  R.  5  Ex.  169,  39  L.  J.  (Ex.)  107.  As  to  the  dis- 
tinction when  the  signature  is  followed  by  the  words  "  as  brokers,"  and  where 
it  is  followed  by  the  words  "'brokers"  only,  see  Hutcheson  v.  Eaton,  13  Q.  B. 
D.  861. 

*  Hence  a  broker  has  no  implied  authority  to  accept  pnymeni  for  the  goods, 
and  tlie  general  rule  is  that  such  a  payment  is  not  a  discharge  and  cannot  be 
set  up  as  a  defence  to  an  action  by  the  principal  for  the  price.  Of  course  the 
existence  of  circumstances  showini;  implied  assent  of  the  principal  that  the 
broker  shall  receive  payment  will  bind  him.  See  Kymer  v.  Suwercropp,  supra, 
p.  *447 ;  Irwine  v.  Watson,  5  Q.  B.  D.  102,  414 ;  Whiton  v.  Spring,  74  N.  Y. 
169 ;  Putnam  v.  French,  53  Vt.  402. 

475 


465  CONTRACTS    BY    AGENTS.  [lECT.  X. 

such,  personally  liable,  in  the  event  of  his  not  disclosing 

the  name  of  his  principal  (?/).     And  evidence  of  such 

usage  is  admissible,  even  though  the  contract  of  sale  be 

in  writing.     The  contract  between  the  parties  em})loy- 

ing  the  broker  is  the  contract  of  employment,  and  not 

the  contract  of  sale,  and  the  custom  is  attached  to  the 

employment  {z).     Brokers,  by  force  of  the  stat.  6  Ann., 

c.  IG,  cannot  practise  in  London  without  being  admitted 

by  the  Mayor  and  Aldermen,  when  they  take  an  oath, 

and  formerly  entered  into  a  bond  for  the  observance  of 

r.    ,  ,^    certain  reo-ulations  (a).     We  have  "^seen  (b)  that 

[■'■^4661  .  .  / 

^         -^    a  person  acting  as  a  broker  in  London  without 

being  duly  qualified,  cannot  recover  compensation  (c). 
Brokerage  relates  to  goods  and  money,  and  not  to  con- 
tracts for  labour  (d)  ;  therefore,  a  stock  broker  is  within 
the  statute  (e),  but  not  a  ship-broker  (/),  or  an  auc- 
tioneer (ff),  or  one  who  procures  and  hires  persons  to 
work  for  another,  in   surveying  lines  of  railway  (A). 


(y)  Fleet  v.  Murton,  L.  E.  7  Q.  B.  126,  41  L.  J.  (Q.  B.)  49;  and  see  ante,  p. 
*452. 

(z)  Fleet  V.  Murton,  svpra,  at  pp.  128,  133,  L.  R.,  at  p.  51,  L.  J.  See  also 
Humfrey  v.  Dale,  7  E.  &  B.  (90  E.  C.  L.  K.)  266,  26  L.  J.  (Q.  B.)  137 ;  K  C. 
in  Exch.  Ch.,  E.  B.  &  E.  (96  E.  C.  L.  R.)  1004,  27  L.  J.  (Q.  B.)  390  ;  Hutchin- 
son V.  Tatham,  L.  R.  8  C.  P.  482 ;  42  L.  J.  (C.  P.)  260. 

(a)  Kemble  v.  Atkins,  Holt  N.  P.  (3  E.  C.  L.  R.)  427;  6  Anne,  c.  16;  57 
Geo.  3,  c.  Ix. ;  10  Anne,  c.  19,  s.  121.  The  Mayor  and  Aldermen  have  no 
longer  anj'  power  to  require  a  bond.  33  &  34  Vict.,  c.  60  (London  Brokers  Re- 
lief Act,  1870),  s.  2.  But  after  the  29th  of  Sept.,  1886,  the  admission  of 
brokers  by  the  Court  of  Mayor  and  Aldermen  is  rendered  no  longer  necessary 
by  47  &  48  Vict.,  c.  3  (London  Brokers  Relief  Act,  1884),  s.  2.  See  ante,  p. 
*"252,  n.  (??i). 

(6)  Ante,  p.  *252. 

(c)  Cope  r.  Rowlands,  2  M.  &  W.  149;  Smith  v.  Lindo,  27  L.  J.  (C.  P.)  106 ; 
4  C.  B.  (N.  S.)  (93  E.  C.  L.  R.)  395;  5  C.  B.  (N.  S.)  (94  E.  C.  L.  R.)  587  in 
Exch.  Ch. 

(d)  Milford  v.  Hughes,  16  M.  &  W.  174. 

(e)  Clarke  v.  Powell,  4  B.  &  Ad.  (24  E.  C.  L.  R.)  846. 
(/)  Gibbons  v.  Rule,  4  Bing.  (13  E.  C.  L.  R.)  301. 
(y)  Wilkes  v.  Eilis,  2  PI.  Bl.  555. 

(A)  Milford  v.  Hughes,  supra. 

476 


LECT.  X.]  BROKEES.  466 

Where  brokers  keep  a  book  and  enter  in  it  and  sign  all 
contracts  made  by  them,  which  in  London  they  were  re- 
quired to  do  by  their  bond  (i),  then  this  entry,  so  signed 
by  the  broker  who  has  negotiated  the  sale  and  purcliase 
of  goods,  would  constitute  the  binding  contract  between 
the  parties  {k),  whose  agent  for  making  it  tlie  broker 
is  (/).  But  in  practice  the  bought  and  sold  notes,  which 
are  memoranda  of  the  purchase  and  sale,  signed  by  the 
broker,  and  sent  to  the  parties,  are  considered  as  consti- 
tuting the  complete  proof  of  the  contract.  *ln  r.>^nr,-\ 
strictness,  however,  it  seems  that  they  do  not  '-  -^ 
constitute  the  conti'act  (m). 

A  remarkable  variation  from  the  usual  course  of 
business  obtains  in  the  case  of  insurance  brokers.  By 
these  persons  subscriptions  to  a  policy  of  assurance  are 
almost  always  procured  ;  to  them  the  underwriters  look 
for  the  premium  of  insurance,  and  to  them  the  assured 
pay  the  premiums.  This  is  clearly  explained  in  the 
following  extract  from  the  judgment  of  Bayley,  J.,  in 
Power  V.  Butcher  {n)  : — "  According  to  the  ordinary 
course  of  trade  between  the  assured,  the  broker,  and  the 
underwriter,  the  assured  do  not,  in  the  first  instance, 
pay  the  premium  to  the  broker,  nor  does  the  latter  pay 
it  to  the  underwriter.  But,  as  between  the  assured  and 
the  underwriter,  the  premiums  are  considered  as  paid. 
The  underwriter,  to  whom  in  most  instances  the  assured 
are  unknown,  looks  to  the  broker  for  payment,  and  he 
to  tlie  assured.  The  latter  pay  the  premiums  to  the 
broker  only,  and  he  is  a  middle  man  between  the 
assured  and  the  underwriter ;  but  he  is  not  solely  agent 

(i)  Kemble  v.  Atkins,  supra. 

(A)  Sievew:ight  v.  Archibald,  20  L.  J.  (Q.  B.)  529;  17  Q.  B.  (79  E.  C.  L.  R.) 
104,  S.  C  ;  Humfrey  v.  Dale,  27  L.  J.  (Q.  B.)  390,  in  Exch.  Ch. 

(I)  Hinde  v.  Whitehouse,  7  East,  558  ;  Goom  v.  Aflalo,  6  B.  &  C.  (13  E.  C. 
L.  E.)  117. 

(m)  See  Benjamin  on  Sales,  255,  3rd  edit, 

(n)  10  B.  &  C.  (21  E.  C.  L.  E.)  339. 

477 


467  COXTEACTS   BY   AGENTS.  [lECT.  X. 

— he  is  a  principal   to  receive   the   money  from   the 
assured,  and  to  pay  it  to  the  underwriter." 

As  to  the  mode  in  which,  in  the  event  of  a  loss,  the 
payment  is  made  to  the  assured,  the  brokers  usually 
settle  and  adjust  the  loss,  and  receive  the  payment.  It 
r*4r81  ^^  ^  frequent  custom  to  make  ^settlements  in 
account  between  the  broker  and  tlie  under- 
writer ;  and  it  is  clear  that  if  the  assured  have  known, 
or  ought,  in  the  common  course  of  things,  to  have 
known  of  such  a  custom,  they  will  be  bound  by  it 
although  money  has  not  been  actually  paid  by  the 
underwriter ;  such  a  settlement  in  account  with  the 
broker  by  the  underwriter  discharging  the  latter  as 
between  himself  and  the  assured.  This  was  decided  in 
Stewart  v.  Aberdein  (o)  ;  but  the  Court  added,  in  de- 
livering its  judgment,  "It  must  not  be  considered,  that, 
by  this  decision,  the  Court  means  to  overrule  any  case 
deciding  that  where  a  principal  employs  an  agent  to 
receive  money,  and  pay  it  over  to  him,  the  agent  does 
not  thereby  acquire  any  authority  to  pay  a  demand  of 
his  own  upon  the  debtor,  by  a  set-off  in  account  with 
liim  (p).  But  the  Court  is  of  opinion  that,  where  an 
insurance  broker  or  other  mercantile  agent  has  been 
emjjloyed  to  receive  money  for  another,  in  the  general 
course  of  his  business,  and  where  the  known  general 
course  of  business  is  for  the  agent  to  keep  a  running 
account  with  the  principal,  and  to  credit  him  with  sums 
r*4rQ1  "^^1^^^^  ^^^  ™^y  li^ve  received  by  *credits  in 
account  with  the  debtors,  with  whom  he  also 
keeps  running  accounts,  and  not  merely  with  moneys 

(o)  4  M.  &  W.  211. 

(p)  Underwood  v.  Nicholls,  25  L.  J.  (C.  P.)  79;  17  C.  B.  (84  E.  C.  L.  E.) 
239;  Guardians  of  Bedford  Union  v.  Pattison,  26  L.  J.  (Ex.)  115;  1  H.  &  N. 
523,  in  Ex.  Ch. ;  Ex  parte  Barkworth  v.  Harrison,  27  L.  J.  (Bptcy.)  5;  Sweet- 
ing V.  Pearce,  29  L.  J.  (C.  P.)  265 ;  Perry  v.  Hall,  29  L.  J.  Ch.  677 ;  Catterall 
V.  Hindle,  L.  E.  1  C.  P.  186,  2  C.  P.  368  (Ex.  Ch.)  35  L.  J.  (C.  P.)  161. 

478 


LECT.  X.]  FACTOES.  469 

actually  received,  the  rule  laid  down  in  those  cases  can- 
not properly  be  applied  ;  but  it  must  be  understood  that 
where  an  account  is  bond  fide  settled  according  to  that 
known  usage,  the  original  de])tor  is  discharged,  and  the 
agent  becomes  the  debtor,  according  to  the  meaning 
and  intention  and  with  the  authority  of  the  principal." 
But  the  necessity  of  this  knowledge  in  the  principal  in 
order  to  render  such  a  settlement  in  account  equivalent 
to  a  settlement  according  to  the  express  authority  of 
the  principal,  has  been  strongly  illustrated  in  a  later 
case,  in  which  even  a  usage  at  Lloyd's  to  this  effect  was 
held  insufficient  to  give  authority  to  the  agent  where 
there  was   proof  that  the  principal   was   ignorant  of 

it  {q). 

These  few  propositions,  it  is  hoped,  will  enable  you 
more  readily  to  understand  those  cases  of  the  law  of 
principal  and  agent,  where  the  latter  is  a  broker,  and 
where  the  general  rules  do  not,  therefore,  seem  directly 
applicable  without  reference  to  these  peculiarities. 

A  factor  is  an  agent  employed  to  sell  goods  or  mer- 
chandise, consigned  or  delivered  to  him  by  or  for  his 
principal,  for  a  compensation,  commonly  called  factor- 
age or  commission.  Hence  he  is  often  called  *a  r^fiAf^rn 
commission  agent  or  commission  merchant  (r). 
He  "  is  an  agent  but  an  agent  of  a  particular  kind.^ 
He  is  an  agent  entrusted  with  the  possession  of  goods 
for  the  purpose  of  sale"  {s).     Since   then   the   usual 

{q)  Sweeting  v.  Pearce,  supra;  30  L.  J.  (C.  P.)  110,  S.  C.  in  Ex.  Ch. 
(r)  See  Story  on  Agency,  s.  34. 

(s)  Per  CoUon,  L.  J.,  in  Stevens  v.  Biller,  25  Ch.  Div.  31,  37 ;  53  L.  J.  (Ch.) 
249,  2o2. 


^  Factors  are  to  be  treated  as  special  owners  of  the  property  consigned  to 
tliem.  They  may  sue  in  their  own  names  for  the  price  of  goods  sold — may 
receive  payments— and  give  receipts,  unless  notice  to  the  contrary  has  been 
given  by  their  principals  :  Graham  v.  Duckwall,  8  Bush,  12. — s. 

479 


4T0  CONTRACTS   BY    AGENTS.  [lECT.  X. 

course  of  his  employment  is  to  sell,  if  he  does  sell, 
though  contrary  to  the  instructions,  whether  implied  or 
express,  of  his  principal  the  true  owner,  the  sale  is 
binding  on  the  latter,  provided  of  course  that  the  pur- 
chaser acts  bond  fide,  and  is  ignorant  that  the  factor  is 
in  fact  unauthorized  to  sell  {t).  This  is  in  accordance 
with  "  the  general  principle  of  law,  that,  where  the  true 
owner  has  clothed  any  one  with  apparent  authority  to 
act  as  his  agent,  he  is  bound  to  those  who  deal  with  the 
apparent  agent  on  the  assumption  that  he  really  is  an 
agent  with  that  authority,  to  the  same  extent  as  if  the 
apparent  authority  was  real  "  {u).  This  is  really  the 
same  principle  which  we  have  already  been  discussing 
in  the  last  lecture,  when  we  were  considering  the 
liability  of  a  principal  for  the  unauthorized  acts  of 
a  general  agent  within  the  scope  of  his  usual  employ- 
ment {x). 

P^._^-j  *It  has,  however,  long  been  the  practice  for 
the  factor  not  merely  to  sell  the  goods  when 
they  come  into  his  possession,  but  also  to  make  advances 
to  the  owner  on  the  security  of  them,  or  incur  liability 
by  accepting  bills  drawn  by  the  owner  on  him  against 
the  cargo  consigned  to  him,  as  the  expression  is,  i,  e., 
on  the  security  of  the  cargo,  the  owner  thus  getting 
paid  a  portion  of  the  price  before  the  goods  or  merchan- 
dise are  actually  sold.  Now,  if  the  factor  thus  makes 
advances  or  incurs  liability  by  his  acceptances,  it  may 
often  be  a  great  advantage  to  him  when  he  has  the  con- 
trol of  the  goods,  either  by  having  actually  received 
them,  or  having  the  documents  of  title  {y)  to  them  in 

(0  Pickering  v.  Busk,  15  East,  38 ;  Stevens  v.  Biller,  25  Ch.  Div.  31 ;  53  L. 
J.  (Ch.)  249.      • 

(u)  Per  Blackburn,  J.,  in  Cole  v.  North  Western  Bank,  L.  R.  10  C.  P.  364; 
44  L.  J.  (C.  P.)  237. 

(x)  Ante,  p.  *414. 

(y)  Such  as  the  bill  of  lading,  dock  warrant,  or  other  order  for  the  delivery 
of  goods. 

480 


LECT.  X.]  FACTOES.  471 

his  possession,  in  turn  to  pledge  them  to  some  third 
party,  either  to  repay  himself  or  to  pnt  himself  in 
funds  to  meet  the  bills  as  they  become  due.  This, 
however,  by  the  Common  Law  he  could  not  do ;  for 
though  the  Courts  held  that  the  unauthorized  sale  by  a 
factor  was  nevertheless  binding  on  his  principal,  by 
reason  of  there  being  an  implied  authority  to  sell,  as 
that  was  the  factor's  usual  employment,  yet  they  re- 
fused to  hold  that  there  was  any  implied  authority  to 
pledge,  as  that  was  no  part  of  his  usual  employment  as 
factor.  Indeed  so  long  ago  as  somewhere  about  the 
year  1742,  in  the  case  of  Paterson  v.  Tash  (z),  it  was 
*laid  down  that  though  a  factor  had  power  to  pM-o-] 
sell,  and  therefore  bind  his  principal,  yet  he 
could  not  bind  or  affect  the  property  of  the  goods  by 
pledging  them  as  a  security  for  his  own  debt,  i.  <?.,  the 
debt  due  from  the  factor  to  the  pledgee.  Indeed,  in 
M'Combie  v.  Davies  (a),  "the  decision  w^nt  so  far  as 
to  hold  that  a  pledge  by  a  factor  w^as  so  wholly  tortious 
as  not  even  to  transfer  the  lien  which  the  factor  him- 
self had  "  (b),  i.  e.,  he  could  not  pledge  the  goods  so  as  to 
repay  himself  even  his  own  advances  to  his  principal. 

This  state  of  the  law  it  was  thought  expedient  to 
alter,  in  the  interests  of  commerce,  in  favour  of  per- 
sons making  bond  fide  advances  to  those  who  had  the 
possession  of  the  property,  or  who  held  the  symbols  of 
the  property  in  the  apparent  character  of  true  owners 
of  it.  Accordingly,  a  series  of  statutes  called  the 
Factors'  Acts  has  been  passed,  by  which  and  by 
the  Common  Law  already  described,  contracts  made 
with  factors  are  now  regulated.     These  (and  the  rule 

(z)  2  Strange,  1178.  This  was  a  ruling  at  nisi  prius.  See,  too,  Martini  v. 
Coles,  1  M.  &  S.  140 ;  Shipley  v.  Kymer,  lb.  484. 

(a)  7  East,  5. 

(6)  Per  Blackburn,  J.,  in  Cole  v.  North  Western  Bank,  L.  R.  10  C.  P.  364; 
44  L.  J.  (C.  P.)  237. 

31  481 


472  CONTRACTS    BY    AGENTS.  [lECT.  X. 

applies  to  all  instances  of  statute  law)  must  be  studied 
in  their  very  words,  although  a  general  sketch  of  their 
effect  is  attempted  here.  The  first  of  these  statutes  is 
4  Geo.  IV.,  c.  83  ;  this  was  altered  and  amended  by  6 
Geo.  IV.,  c.  94  ;  and  both  have  received  amendment  by 
p  ,-o-|  the  5  &  6  Vict.,  '-'c.  39.  Their  scope  has  been 
enlarged  and  some  defects  in  tlie  law  remedied 
by  40  &  41  Vict.,  c.  39,  the  last  of  the  series.  The  fol- 
lovfing  very  succinct  description  of  the  effect  of  the 
three  first  of  these  statutes  is  extracted  from  a  work  of 
the  greatest  utility  and  accuracy,  Chitty's  Collection 
of  Statutes  of  Practical  Utility  (c)  :■ — "First,  where 
goods,  or  documents  for  the  delivery  of  goods,  are 
pledged  as  a  security  for  present  or  future  advances, 
with  the  knowledge  that  they  are  not  the  property  of 
the  factor,  but  without  notice  that  he  is  acting  without 
authority,  in  such  a  case  the  pledgee  acquires  an  abso- 
lute lien.  Secondly,  where  the  goods  are  pledged  by  a 
factor  without  notice  to  the  pledgee  that  they  are  the 
property  of  another,  as  a  security  for  a  pre-existing 
debt,  in  that  case  the  pledgee  acquires  the  same  right  as 
the  factor  had.  Thirdly,  where  a  contract  to  pledge  is 
made  in  consideration  of  the  delivery  of  other  goods  or 
documents  of  title,  upon  which  the  persons  delivering 
them  up  had  a  lien  for  a  previous  advance  (which  is 
deemed  to  be  a  contract  for  a  present  advance),  in  that 
case,  the  pledgee  acquires  an  absolute  lien  to  the  extent 
of  the  value  of  the  goods  given  up."  It  is  to  be  ob- 
served that  the  persons  whose  dealings  with  property 
or  documents  in  their  possession  are  within  the  protec- 
r*4741  ^^^^  ^^  these  earlier  statutes,  are  persons  en- 
trusted ^therewith  as  factors  or  agents  (d),  not 

(c)  Vol.  2,  p.  1082,  4th  edit.,  by  Lely. 

(d)  Jenkyns  v.  Usborne,  7  M.  &  Gr.  (49  E.  C.  L.  R.)  678  ;  Van  Casteol  r. 
Booker,  2  Exch.  691 ;  Kingsford  v.  Merry,  26  L.  J.  (Ex.)  83 ;  1  H.  &  N.  603, 
in  Exch.  Ch. 

482 


LECT.  X.]  FACTOES.  474 

persons  to  whose  employment  a  power  of  sale  is  not 
commonly  incident,  as  wharfingers  {e),  or  warehouse 
keepers  (/),  and  that  the  transactions  which  are  within 
tlie  statutes  are  mercantile  transactions  {g). 

Thus,  where  advances  were  made  upon  the  security 
of  furniture  used  in  a  furnished  house,  not  in  the  way 
of  trade,  to  the  apparent  owner  of  such  furniture,  such 
apparent  owner  afterwards  appearing  to  be  the  agent 
entrusted  with  the  custody  of  the  furniture  by  the  true 
owner,  the  case  was  held  not  to  be  within  the  meaning 
of  the  Factors'  Acts,  such  agent  not  being  an  agent, 
nor  such  furniture,  goods,  and  merchandise,  within  the 
^meaning  of  any  of  tliem  (h).  Moreover,  be-  riM-r-i 
fore  the  passing  of  40  &  41  Vict,  c.  39  (the  ^ 
Factors'  Act,  1877),  it  was  held  in  a  recent  case  (i) 
tliat  the  person  who  w^as  to  create  a  pledge  of  his  prin- 
cipal's goods  valid  w^ithin  the  protection  of  the  three 
first  statutes,  must  be  an  agent  who  was  entrusted  at 
the  time  of  the  making  the  pledge.  Therefore,  w4iere  a 
person  who  had  been  an  agent  to  sell  certain  goods, 
but  whose  authority  was  revoked,  wrongfully  retained 
the  goods  after  the  revocation  and  demand  for  the  goods 
from  the  principal,  and  then  pledged  them  for  an 
advance  made  bond  fide  and  in  ignorance  that  the  jios- 

(e)  Monk  v.  Whittenbury,  2  B.  &  Ad.  (22  E.  C.  L.  E.)  484. 

(/)  Cole  I'.  North  Western  Bank,  L.  E.  9  C.  P.  470,  43  L.  J.  (C.  P.)  194, 
affirmed  in  Ex.  Ch.,  L.  E.  10  C.  P.  354,  44  L.  J.  (C.  P.)  233. 

{g)  Wood  V.  Eowcliffe,  6  Hare,  191.  See,  also,  Baines  v.  Swainson,  4  B.  &  S. 
270,  32  L  J.  Q.  B.  281,  "  the  case  of  the  commission  agent,  who  informed 
the  owners  of  goods  that  he  had  an  opportunity  of  selling  them,  and  having 
got  samples,  represented  that  he  had  sold  the  goods  to  a  person  who  it  was 
afterwards  discovered  had  no  existence,  and  having  by  that  fraud  got  posses- 
sion of  the  goods,  pledged  them  to  a  third  person,  who  made  an  advance 
bond  fide  and  without  knowledge  of  the  fraud  ;  and  it  was  held  that  the  latter 
acquired  a  good  title  to  the  goods  under  the  Factors'  Acts."  Per  WiUes,  J., 
in  Fuentes  v.  Montis,  L.  E.  3  C.  P.,  p.  279. 

(h)  Wood  V.  Eowcliffe,  supra. 

(i)  Fuentes  r.  Montis,  L.  E.  3  C.  P.  268,  4  C.  P.  93 ;  37  L.  J.  (C.  P.)  137,  38 
lb.  95. 

483 


475  CONTEACTS   BY    AGENTS.  [lECT.  X. 

session  was  that  of  an  agent,  it  was  held  that  the 
pledger  was  not  an  agent  at  all  but  a  wrongdoer,  and 
not  within  the  Acts,  and  that  the  pledge  was  not  a 
transaction  within  their  protection.  This  case,  there- 
fore, decided  that  a  secret  revocation  of  the  agent's 
power  would  defeat  the  rights  of  bond  fide  pledgees  (k). 
The  case,  however,  which  seems  to  have  led  immedi- 
ately to  the  changes  of  the  law  produced  by  40  &  41 
Vict.,  c.  39,  is  Johnson  v.  Credit  Lyonnais  Co.  (/),  the 
facts  in  which  were  as  follows  :  One  Hoffmann,  a  broker 
r*47fi1  ^"  ^^^^  tobacco  trade,  but  who  *also  dealt  in 
tobacco  as  an  importing  merchant,  having  im- 
ported a  quantity  of  that  article,  left  it  in  bond  in  the 
warehouses  of  the  St.  Katherine's  Dock  Company,  re- 
ceiving the  usual  dock  warrants ;  and  the  tobacco  was 
entered  in  the  books  of  the  Company  as  that  of  Hoff- 
mann. This  tobacco  Hoffmann  sold  to  the  plaintiff, 
who  carried  on  the  business  of  a  tobacco  manufacturer 
at  Bolton,  in  Lancashire,  but  it  not  suiting  the  plain- 
tiff's purpose  to  take  the  tobacco  out  of  bond,  which 
would  have  involved  the  necessity  of  paying  the  duty 
before  he  wanted  the  tobacco,  he  did  what  it  appeared 
was  frequently,  but  not  always,  done  in  the  tobacco 
trade  by  purchasers  in  order  to  avoid  the  immediate 
payment  of  the  duty ;  he  left  the  tobacco  in  bond  in 
the  name  of  Hoffmann,  and  left  the  dock  warrants  in 
Hoffmann's  hands,  and  took  no  steps  to  have  any 
change  made  in  the  books  of  the  Dock  Company  as 
to  the  ownership  of  the  goods.  According  to  the 
plaintiff's  statement,  he  was  ignorant  of  the  fact  that, 
when  goods  are  thus  deposited  in  the  warehouses  of  the 
Dock  Company,  dock  warrants  are  issued  to  the  party 
depositing  which  represent  the  goods,  and  are  capable 

{k)  Benjamin  on  Sales,  book  v.,  part  1,  p.  806,  3rd  edit. 
(0  L.  R.  2  C.  P.  D.  224;  3  C.  P.  D.  (C.  A.)  32;  47  L.  J.  (Q.  B.,  etc.)  241. 
484 


LECT.  X.]  FACTORS.  476 

of  being  transferred  so  as  to  enable  tlie  transferee  to 
obtain  possession  of  the  goods.  Being  thus  the  ostensi- 
ble owner  of  the  tobacco,  Hoffmann  fraudulently 
obtained  advances,  on  the  pledge  of  a  portion  of  it, 
from  the  Credit  Lyonnais  Company,  the  defendants, 
who  acted  in  perfect  good  faith  under  the  belief,  in- 
duced by  his  *being  in  possession  of  the  goods  r*477T 
and  of  the  indicia  of  ownership,  that  Hoff- 
mann was  the  owner  of  the  tobacco.  The  defendants, 
on  the  completion  of  the  transaction,  caused  the  entry 
of  the  goods  to  be  transferred  from  the  name  of  Hoff- 
mann to  their  own  in  the  books  of  the  Dock  Company, 
and  took  fresh  dock  warrants  from  the  Company,  giv- 
ing up  the  former  ones.  The  transactions  between 
Hoffmann  and  the  defendants  were  wholly  unknown  to 
the  plaintiff;  his  statement  also  that  he  was  unaware 
of  the  practice  of  giving  dock  warrants  as  evidence  of 
the  title  of  the  party  to  whom  they  are  given,  or  of  the 
transfer  of  such  warrants  on  alienation  of  the  property, 
does  not  seem  to  have  been  questioned.  Upon  this 
state  of  facts  Denman,  J.,  gave  judgment  in  favour  of 
the  plaintiff  for  the  value  of  the  tobacco  pledged  to  the 
defendants;  and  on  appeal  that  judgment  was  affirmed. 
The  Court  of  Appeal  held  {m)  that  Hoffmann  was  not 
entrusted  by  the  plaintiff  as  his  factor  or  agent  with  the 
documents  of  title  within  the  meaning  of  the  then  exist- 
ing Factors'  Acts ;  and  also  that  the  plaintiff's  conduct 
in  leaving  the  indicia  of  title  in  Hoffmann's  hands  was 
not  such  as  to  disentitle  him  to  recover  the  value  of  the 
tobacco  from  the  defendants.  After,  however,  the  deci- 
sion of  Denman,  J,,  and  before  the  appeal,  the  statute 
40  &  41  Vict.,  c.  39,  was  passed  (on  the  *10th  ^^=470-1 
of  August,  1877),  which  alters  the  law  in  some 
material  particulars. 

(to)  3  C.  P.  D.  32, 47  L.  J.  (Q.  B.,  etc.)  241. 

485 


478  CONTKACTS   BY   AGENTS.  [lECT.  X. 

That  Act,  after  reciting  that  "doubts  have  arisen 
with  respect  to  the  true  meaning  of  certain  provisions 
of  the  Factors'  Acts,  and  it  is  expedient  to  remove  such 
doubts  and  otherwise  to  amend  the  said  Acts,  for  the 
better  security  of  persons  buying  or  making  advances 
on  goods,  or  documents  of  title  to  goods,  in  the  usual 
and  ordinary  course  of  mercantile  business ;"  enacts  as 
follows : 

"(1.)  In    this   Act,   the   expression    'the   principal 
Acts'  means  the  following  Acts;  that  is  to  say, 
The  Act  of  the  4th  Geo.  IV.  (1823),  c.  83. 
The  Act  of  the  6th  Geo.  IV.  (1825),  c.  94. 
The  Act  of  the  5th  and  6th  of  Her  Majesty 
(1842),  c.  39. 
And  the  said  Acts  and  this  Act  may  be  cited  for  all 
purposes  as  the  *  Factors'  Acts,  1823  to  1877.'  " 

"  (2.)  Where  any  agent  or  person  has  been  entrusted 
with  and  continues  in  the  possession  of  any  goods, 
or  documents  of  title  to  goods,  within  the  meaning 
of  the  principal  Acts  as  amended  by  this  Act,  any 
revocation  of  his  entrustment  or  agency  shall  not 
prejudice  or  affect  the  title  or  rights  of  any  other 
person  who,  without  notice  of  such  revocation, 
purchases  such  goods,  or  makes  advances  upon  the 
faith  or  security  of  such  goods  or  documents.*' 

This  section  applies  to  the  state  of  facts  in 

r  4791    •  •    / 

L        J    *Fuentes  v.  Montis  (supra,  p.  *475) ;  and  the 

rights  of  bond  fide  pledgees  or  purchasers  ai'e  no  longer 
liable  to  be  defeated  by  a  secret  revocation  of  the 
authority  of  the  agent,  in  whose  hands,  notwithstanding 
the  revocation,  the  goods  or  documents  of  title  are  actu* 
ally  remaining  in). 

"  (3.)  Where  any  goods  have   been    sold,  and   the 

(n)  See  remark  in  Benjamin  on  Sales,  2ncl  edit.,  p.  679 ;  see  also  3rd  edit., 
pp.  806,  809. 

486 


LECT.  X.]  FACTORS.  479 

vendor  or  any  person  on  his  behalf  continues  or  is 
in  possession  of  the  documents  of  title  thereto,  any 
sale,  pledge,  or  other  disposition  of  the  goods  or 
documents  made  by  such  vendor  or  any  person  or 
agent  entrusted  by  the  vendor  with  the  goods  or 
documents  within  the  meaning  of  the  principal 
Acts  as  amended   by   this  Act  so  continuing  or 
being  in  possession,  shall  be  as  valid  and  effectual 
as  if  such  vendor  or  person  were  an  agent  or  per- 
son entrusted  by  the  vendee  with   the  goods  or 
documents  within   the  meaning  of  the  principal 
Acts  as  amended  by  this  Act,  provided  the  person 
to  whom  the  sale,  pledge,  or  other  disposition  is 
made  has  not  notice  that  the  goods  have  been  pre- 
viously sold." 
This  section  bears  upon  the  state  of  facts  in  Johnson 
V.  Credit  Lyonnais  Company  (ante,  p.  *475).     If  this 
section  had  been  in  force  when  those  facts  *hap-  p;:40A-| 
pened  the  plaintiff  would  have  had  to  bear  the 
loss,  not  the  defendant  (o). 

''(4).  Where  any  goods  have  been  sold  or  con- 
tracted to  be  sold,  and  the  vendee,  or  any  person 
on  his  behalf,  obtains  the  possession  of  the  docu- 
ments of  title  thereto  from  the  vendor  or  his 
agents,  any  sale,  pledge,  or  disposition  of  such 
goods  or  documents  by  such  vendee  so  in  posses- 
sion or  by  any  other  person  or  agent  entrusted  by 
the  vendee  with  the  documents  within  the  meaning 
of  the  principal  Acts  as  amended  by  this  Act,  shall 
be  as  valid  and  effectual  as  if  such  vendee  or  other 
person  were  an  agent  or  person  entrusted  by  the 
vendor  with  the  documents  within  the  meaning  of 
the  principal  Acts  as  amended  by  this  Act,  pro- 

(o)  See  the  remarks  of  Cockbnrn,  C.  J.,  in  Johnson  v.  Credit  Lyonnais  Co.,  3 
CS.  P.  D.  36,  47  L.  J.  (Q.  B.,  etc.)  245. 

487 


480  CONTRACTS   BY   AGENTS.  [lECT.  X. 

vided  the  person  to  whom  the  sale,  pledge,  or  other 

disposition  is  made  has  not  notice  of  any  lien  or 

other  right  of  the  vendor  in  respect  of  the  goods." 

This  section    applies   to   the    cases   of    Jenkyns   v. 

"Usborne  {p)  and  Van  Casteel  v.  Booker  [q],  where  it 

"was  held  that  pledges  of  documents  of  title  by  persons 

claiming  to  be  owners,  were  not  within  the  protection 

of  the  then  Factors'  Act,  which  applied  only  to  the 

cases  of  persons  entrusted  with  the  documents  as  factors 

or  agents. 

P==4ft11  *"  (^*^  Where  any  document  of  title  to  goods 
has   been  lawfully  endorsed  or  otherwise 
transferred  to  any  person  as  a  vendee  or  owner  of 
the  goods,  and  such  person   transfers  such  docu- 
ment by  endorsement   (or  by  delivery  where  the 
document  is  by  custom,  or  by  its  express  terms 
transferable  by  delivery,  or  makes  the  goods  de- 
liverable to  the  bearer)  to  a  person  who  takes  the 
same  b(md  fide  and  for  valuable  consideration,  the 
last-mentioned  transfer  shall  have  the  same  effect 
for  defeating  any  vendor's  lien  or  right  of  stop- 
page in  transitu  as  the  transfer  of  a  bill  of  lad- 
ing has  for  defeating  the   right  of  stopj^age   in 
transitu." 
This  section  contains  a  very  important  alteration  of 
the  law  as  to  the  riglit  of  stoppage  in  transitu  (r).  This 
right  exists  where  the  unpaid  vendor  of  goods  who  has 
contracted  for  their  sale,  and  delivered  them  to  a  car- 
rier in   compliance  witli  the  sale,  ascertains  that  the 
vendee  is  insolvent  before  the  arrival  of  the  goods  at 

(p)  7  M.  &  G.  (49  E.  C.  L.  E.)  678. 

(q)  2  Exch.  691. 
;     (r)  It  is  not  within  tlie  scope  of  this  work  to  enter  into  the  subject  of  stop- 
page in  transitu  at  any  length.     The  student  who  desires  information  there- 
upon is  referred  to  Lickbarrow  v.  Mason,  1  Smith  L.  C,  p.  753,  8th  edit.,  aud 
to  Benjamin  on  Sales,  book  v.,  part  i.,  chap.  5,  p.  815, 3rd  edit. 

4S,8 


LECT.  X.]  FACTORS.  481 

their  destination.  In  that  case,  while  the  goods  are 
still  in  transitu,  the  vendor  may  stoj)  and  countermand 
their  delivery.  The  doing  this  is  called  stoppage  in 
transitu. 

'''But  though  the  consignor  may  thus  stop  the  p...Qoi 
goods  before  they  get  to  the  consignee,  yet  the  '-  *'-' 
latter  in  ahnost  all  cases  of  the  shipment  of  goods  re- 
ceives the  bill  of  lading  of  the  goods  before  the  goods 
arrive.  Now  the  bill  of  lading  is  a  document  signed  by 
the  master  of  the  vessel  on  board  of  which  the  goods 
are  shipped  acknowledging  their  receipt  on  board,  and 
that  they  are  deliverable  to  the  person  named  therein 
or  his  assigns ;  and  by  tlie  custom  of  merchants  if  this 
bill  of  lading  is  transferred  by  endorsement  for  a  valu- 
able consideration,  the  property  in  the  goods  passes. 
The  bill  of  lading  thus  becomes  to  a  considerable  ex- 
tent a  negotiable  instrument,  for  not  only  is  it  a  symbol 
of  value  passing  from  hand  to  hand  if  duly  transferred, 
but  if,  while  the  goods  are  on  their  way  to  their  destina- 
tion, the  consignee  assign  the  bill  of  lading  to  a  third 
person  for  a  valuable  consideration  given  bond  fide,  the 
right  of  the  consignor  to  stop  the  goods  as  against  such 
assignee  is  thereby  divested  (s).  This  degree  of  negotia- 
bility, however,  was  never  extended  to  other  documents 
of  title  before  this  act;  but  now  the  right  of  stopi)agem 
transitu  may  be  defeated  by  the  due  transfer  of  any 
documents  of  title  {t). 

*"(6.)  This  Act  shall  apply  only  to  acts  done    rH:4Qo-| 
and  rights  acquired  after  the  passing  of  this 
Act." 

It  is  not  intended  here  to  enter  further  into  the  con- 
sideration  of  the   Factors'    Acts.     But   you  must  not 

(s)  Lickbarrow  v.  Mason,  »ujyra. 

(<)  As  to  what  the  words  "documents  of  title"  embrace,  see  5  &  6  Vict.,  c 
89,  s.  4. 

489 


483  CONTRACTS    BY    AGENTS.  [lECT.  X. 

forget  to  observe  that  they  relax  the  general  rule  of  the 
Common  Law,  that  a  man  cannot  give  a  better  title  to 
goods  than  he  has  himself  {u),  in  favour  of  persons  who 
bond  fide  and  without  notice  of  any  absence  or  limita- 
tion of  authority  in  the  person  with  whom  they  deal, 
pay  or  advance  him  money  on  the  strength  of  the  docu- 
ments of  title  which  he  produces,  or  of  the  goods  of 
which  he  is  the  ostensible  owner  {x).  It  is  found  on 
the  whole  fairest  and  most  beneficial  to  trade  that  bond 
fide  dealings  on  the  security  of  goods  or  documents  of 
title  should  be  upheld  rather  than  the  title  of  the  true 
owner,  and  that  on  him  should  fall  the  loss,  if  any, 
arising  from  the  untrustworthiness  of  persons  into 
whose  hands  the  symbols  of  the  ownership  of  his  prop- 
erty have  come. 

Before  leaving  the  subject  of  contracts  by  agents,  I 
r*4S41  ^^^^^  advert  to  the  topic  which  in  a  former  lect- 
ure '''I  reserved  for  this  period,  that,  namely  of 
a  wife's  power  to  bind  her  husband  by  contract.  Now 
it  is  a  principle,  as  old  as  the  time  of  Fitzherbert  {y), 
that,  whenever  a  wife's  contract  made  during  marriage 
binds  the  husband,  it  is  on  the  ground  that  she  entered 
into  it  as  his  agent.^     Thus,  where  the  plaintiff  sold 

(u)  A  somewhat  similar  exception  we  have  already  considered,  anle  p.  *248, 
where  we  saw  that  a  purchaser  under  a  contract  voidable  by  reason  of  fraud 
may  yet  give  a  good  title  to  an  innocent  purchaser  for  value.  Both  exceptions 
probably  depend  on  the  same  principle. 

(x)  See  the  judgment  of  Wilks,  J.,  in  Fuentes  v.  Montis.  L.  R.  3  C.  P.  268  ; 
37  L.  J.  (C.  P.)  137  ;  and  that  of  Lord  Blnckbum,  then  Blackburn,  J.,  in  Cole 
V.  North  Western  Bank,  L.  R.  10  C.  P.  357  ;  44  L.  J.  (C.  P.)  233. 

{y)  Fitz.  Nat.  Brev.  27,  C. ;  lb.  118,  F. ;  lb.  120,  G 

1  Sawyer  v.  Cutting,  23  Vt.  486 ;  Leeds  v.  Vail,  15  Pa.  St.  185 ;  Alexander  v. 
Miller,  16  lb.  215  ;  Burk  v.  Howard,  13  Mo.  241  ;  Swett  v.  Penrice,  24  Miss. 
416.  If  a  husband  allow  his  wife  to  conduct  business  as  a  trader,  he  is  liable 
on  her  contracts:  Godfrey  v.  Brooks,  5  Harring.  396;  Cropsey  i.  M'Kinney, 
30  Barb.  47.  The  husband  is  liable  for  goods  furnished  to  the  wife  suitable  to 
their  station  in  life  when  he  has  knowingly  permitted  the  wife  to  retain 
them  :  Gilman  v.  Andrus,  28  Vt.  241 ;  Ogden  v.  Prentice,  33  Barb.  160.— s. 
490 


LECT.  X.]  WIVES.  484 

musir.  to  a  married  woman  living  with  lier  husband,  and 
sued  the  husband  for  the  price,  and  the  only  question  left 
to  the  jury  was,  whether  the  music  was  necessary  for 
the  wife  in  her  station,  this  was  held  wrong,  as  the 
question  ought  to  have  been,  whether  the  wife  had  the 
husband's  authority  to  purchase  {z).  Now,  she  may  be 
appointed  his  agent  in  the  same  way  that  any  other 
individual  may,  either  by  express  words  or  by  implica- 
tion, as  I  have  already  mentioned,  and  you  will  find 
that  illustrated  by  the  case  of  M'George  v.  Egan. 
There  the  defendant's  wife  had  put  her  brother's  child 
to  school  with  the  plaintiff,  and  the  defendant  had  oc- 
casionally visited  the  child  at  the  school,  and  was  in 
the  habit  of  paying  for  a  variety  of  articles  ordered  by 
his  wife  for  the  use  of  his  house,  and  amongst  them  he 
had  paid  a  carver  and  gilder's  bill  incurred  by  the  wife ; 
although  it  was  contended  that  these  facts  afforded  no 
inference  that  the'defendant  had  authorized  the  pMo— i 
*wife  to  incur  the  debt  claimed  by  the  plaintiff, 
the  Court  held,  that  it  clearly  was  evidence  of  her 
having  authority  to  contract  that  debt,  although  it  was 
slight  (a).  Thus,  also,  where  the  plaintiff,  in  order  to 
substantiate  a  demand  for  goods  sold  to  the  defendant, 
proved  that  he  had  a  shop,  in  which  his  wife  served  and 
carried  on  the  business  of  it  in  his  absence,  and  that, 
on  applying  to  her  for  the  price  of  the  goods,  she  said 
she  would  pay  it  if  he  would  allow  £10,  which  she 
claimed,  and  give  a  receipt  in  full ;  the  Court  thought 
that  this  was  evidence  from  which  it  might  be  presumed 
that  the  wife  was  acting  within  the  scope  of  her  im- 
thority  when  she  offered  to  settle  a  demand  for  goods 
delivered  at  a  shop  in  which  she  served,  and  the  busi- 

(2)  Keid  V.  Teakle,  22  L.  J.  (C.  P.)  161 ;  13  C.  B,  (76  E.  C.  L.  R.)  627,  S.  C; 
Lane  v.  Ironmonger,  13  M.  &  W.  3G8. 
(a)  5  Bing.  N.  C.  (35  E.  C.  L.  R.J  196. 

491 


485  CONTRACTS   BY   AGENTS.  [lECT.  X. 

ness  of  which  she  was  in  the  habit  of  conducting  {b). 
But,  on  the  other  hand,  where  she  equally  carried  on 
the  business  of  the  shop  by  her  husband's  authority, 
and  attended  to  all  the  receipts  and  payments,  a  state- 
ment made  by  her  that  she  would  pay  her  rent  on  the 
day  it  would  be  due  if  it  was  remitted  to  her  by  her 
husband  in  time,  and  that  the  amount  was  £6,  was  held 
not  to  be  evidence  against  her  husband  of  the  terras  of 
his  tenancy  (c).  The  diffei'ence  is  obvious  between  the 
r*4Kn  ^^^^  cases ;  for,  ^though  the  wife  might  be  the 
agent  of  her  husband  to  make  payments,  she  is 
not  on  that  account  necessarily  his  agent  to  admit  an 
antecedent  contract.  Therefore,  if  the  admissibility  of 
her  statement  be  rested  on  the  ground  of  its  being  evi- 
dence of  an  antecedent  lease,  it  must  fail.  Neither 
does  her  agency  to  make  payments  constitute  her 
an  agent  to  take  a  lease  for  the  benefit  of  her  hus- 
band. 

I  am  not,  however,  now  speaking  of  that  sort  of 
agency  which  is  purely  conventional,  and  in  no  way 
depends  on  the  relation  of  husband  to  wife,  inasmuch 
as  it  may  be  conferred  on  any  one  else ;  but  of  another 
and  a  peculiar  sort  of  agency,  which  is  imiDlied  from 
the  circumstance  of  two  persons  living  together  as  man 
and  wdfe,  from  which  circumstance  a  presum2:)tion  arises 
that  the  wife  has  authority  to  bind  the  husband  by  her 
contracts  for  necessaries  suitable  to  his  fortune  and  rank 
in  life.^     This  is  very  clearly  explained  by  Lord  Holt 

(6)  ClifTord  v.  Burton,  1  Bing.  (8  E.  C.  L.  E.)  199. 
(c)  Meredith  v.  Footner,  11  M.  &  W.  202. 


'  This  agency  (the  existence  of  which  is  a  question  for  the  jury,  I^ane  v. 
Ironmonger,  13  M.  &  W.  368;  Casteel  v.  Casteel,  8  Blackf.  240),  is,  however,  so 
far  as  necessaries  are  concerned,  to  be  presumed  from  the  mere  fact  of  cohabi- 
tation: M'Cutchen  v.  M'Gahay,  11  Johns.  281 ;  Fredd  v.  Eves,  4  Harring.  386; 
492 


LECT.  X.]  WIVES.  486 

in  Etherington  v.  Parrott  {d),  where  he  says  :  "  It  is  the 
cohabitation  that  is  an  evidence  of  the  hnsband's  assent 
to  contracts  made  by  his  wife  for  necessaries."  Bnt  then 
this  must  be  taken  subject  to  three  observations :  first, 
that  the  contract  must  be  for  necessaries  ;  secondly,  that 
the  party  '-'making  it  must  not  have  been  forbid-  r-UA<i7l 
den  to  trust  lier  ;  and  thii-dly,  that  the  pi-esump- 
tion  must,  in  tlie  case  of  contracts  entered  into  since  stat. 
45  &  40  Vict,  c.  75  (Married  Women's  Property  Act, 
1882)  came  into  force,  be  considered  subject  to  the 
quahfication  contained  in  sect.  1,  sub-sect.  3,  of  tliat 
Act,  which  enacts  that  "  every  contract  entered  into  by 
a  married  woman  shall  be  deemed  to  be  a  contract 
entered  into  by  her  with  respect  to  and  to  bind  her 
separate  property,  unless  the  contrary  be  shown." 

Now,  with  regard  to  the  question  what  are  necessa- 
ries, it  is  a  question  which  always  and  obviously  de- 
pends upon  the  circumstances  of  the  particular  case 
under  discussion  for  the  time  being.  Servants,  suitable 
to  the  husband's  fortune  and  rank,  have  been  held  to 
be  such  necessaries  in  a  case  where  the  defendant  was 
Governor  of  Barbadoes,  and  his  wife,  being  about  to 
quit  England  in  order  to  join  him  there,  engaged  the 

(d)  Ld.  Kaym.  1006;  Waithman  v.  Wakefield,  1   Camp.  120.     See  Jolly  v. 
Eees,  33  L.  J.  (C.  P.)  177  ;  15  C.  B.  (N.  S.)  (109  E.  C  L.  K.)  628. 


Connerat  v.  Goldsmith,  6  Ga.  14 ;  Henderson  v.  Stringer,  2  Dana,  291 ;  so 
much  so,  that  it  matters  not  whether  the  woman  be  really  the  wife  of  the 
man  sought  to  be  charged,  or  only  apppar  so  to  be,  if  he  allow  her  to  live  with 
him  and  pass  for  his  wife  :  Watson  v.  Threlkeld,  2  Esp.  637  ;  Blades  v.  Free, 
9  B.  &  C.  (17  E.  C.  L.  E.)  167.— r. 

Furlong  v.  Hysom,  35  Me.  332  ;  Wood  v.  (yKelley,  8  Cush.  406 ;  Mitchell 
V.  Treanor,  11  Ga.  324. — s. 

Lane  v.  McKeen,  15  Me.  304;  Green  v.  Sperry,  16  Vt.  390;  Benjamin  v. 
Benjamin,  15  Conn.  347 ;  Leeds  v.  Vail,  15  Pa.  St.  185 ;  Breinig  v.  Meitzler,  23 
lb.  156;  Fames  v.  Sweetser,  101  Mass.  78;  Raynes  v.  Bennett,  114  lb.  424; 
Powers  V.  Russell,  26  Mich.  179 ;  Weir  v.  Groat,  4  Hun,  193 ;  Flynn  v.  Mes- 
senger, 28  Minn.  208. 

493 


487  ■         CONTRACTS   BY    AGENTS.  [lECT.  X. 

plaintiff  as  her  maid  to  accompany  her  on  the  voy- 
age (e).  The  question  is  one  which  is  continually 
arising,  and  of  which  tliere  are  many  reported  ex- 
amples. Thus,  in  Hunt  v.  De  Blaquiere  (/),  articles 
of  furniture  for  a  house  were,  under  the  circumstances 
of  the  case,  held  to  be  necessaries. 

But  the  cases  most  frequently  referred  to  on  the 
r*4SSl  ^subject  are  Montague  v.  Benedict  (g)  and 
Seaton  v.  Benedict  (h).  The  name  of  the  de- 
fendant probably  strikes  you  as  fictitious,  and  in  truth 
it  is  so,  being  taken  from  a  play  of  Shakespeare,  called 
Much  Ado  about  Nothing,  in  which  one  of  the  charac- 
ters is  a  young  officer  named  Benedict,  who  protests 
vehemently  against  marriage.  The  real  defendant  w^as 
a  highly  respectable  professional  gentleman ;  and  it 
was  sought  in  Seaton  v.  Benedict  to  charge  him  with  a 
a  bill  contracted  by  his  wife  for  articles  of  millinery  of 
a  very  expensive  description.  It  appeared  at  the  trial 
that  she  was  already  supplied  with  all  the  necessary 
articles  of  dress ;  and  the  Court  held,  on  a  motion  for 
a  new  trial,  that  the  defendant  was  in  point  of  law 
entitled  to  the  verdict. 

In  the  other  case  of  Montague  v.  Benedict,  the  goods 
supplied  were  articles  of  jewellery,  to  the  amount  of 
£83,  which  had  been  delivered  in  the  course  of  two 
months.  The  plaintiff's  evidence  was,  that  the  defend- 
ant lived  in  a  furnished  house  of  which  the  rent  was 
£200  year,  and  that  the  lady  had  a  fortune  of  £4000 ; 
the  defendant's  that  the  lady  w\as  already  supplied  with 
Bufficient  jewellery.  The  jury  found  a  verdict  for  the 
plaintiff;  but  the  Court  set  it  aside,  on  the  ground  that 


(c)  White  V.  Cuyler,  1  Esp.  200 ;  6  T.  E.  176. 
(/)  5  Bing.  (15  E.  C.  L.  R.)  550 
{g)  3  B.  &.  C.  (10  E.  C.  L.  E.)  631. 
(A)  5  Bing.  (15  E.  C.  L.  E.)  28. 

494 


LECT.  X.]  WIVES.  488 

there  was  no  evidence  to  support  it.  Mr.  J.  Bayley 
said,  "  If  the  husband  and  wife  live  together,  pjoqi 
*aud  the  husband  will  not  supply  her  with 
necessaries  or  the  means  of  obtaining  them,  then, 
although  she  has  her  remedy  in  the  Ecclesiastical  Court, 
yet  she  is  at  liberty  to  pledge  the  credit  of  her  husband 
for  wliat  is  strictly  necessary  to  her  own  supjDort.  But, 
wdienever  the  husband  and  the  wife  are  living  together, 
and  he  provides  her  with  necessaries,  the  husband  is 
not  bound  by  contracts  of  the  wife,  except  where  there 
is  reasonable  evidence  to  show  that  the  wife  has  made 
the  contract  with  his  assent.  Cohabitation  is  presump- 
tive evidence  of  the  assent  of  the  husband,  but  it  may 
be  rebutted  by  contrary  evidence  ;^  and  when  such 
assent  is  proved,  the  wife  is  the  agent  of  the  husband 
duly  authorized."  Indeed,  the  husband's  assent  during 
cohabitation  being  thus  presumed  to  be  given  to  the 
wife's  contracting  for  necessaries  suitable  to  his  degree, 
the  suitableness  of  the  things  contracted  for  is  evidently 
to  be  considered.  "  It  is  because  she  is  the  agent  of 
her  husband,"  said  Parke,  B.,  in  Lane  v.  Iron- 
monger (^),"that  the  tradesman  ought  to  be  careful 
not  to  supply  her  to  an  extravagant  extent.  For, 
giving  orders  to  such  an  extent  would  go  to  show  that 
she  was  not  acting  as  the  husband's  agent,  and  to  the 
extent  authorized  by  him." 

The  before-mentioned  observations  of  Mr.  J.  Bayley 
suppert   the   second   of  the   rules   to   which  I    r*4Qoi 
^adverted,  namely,  that  the  contract  must  not 
only  be  for  necessaries  suitable  to  the  husband's  fortune 

(i)  13  M.  &  W.  368. 


*  As,  for  instance,  bv  showing  that  the  tradesman  gave  credit  to  the  wife 
herself:  Connerat  r.  Goldsmith,  6  Ga.  14. — R. 
Swett  V.  Pern-ice,  24  Miss.  416.— s. 

495 


490  CONTRACTS    BY   AGENTS.  [lECT.  X. 

and  degree,  but  that  the  person  making  it  must  not 
have  been  forbidden  to  contract  with  the  wii'e  on  liis 
account/ 

This  point,  indeed,  had  been  decided  long  before  by 
the  majority  of  the  judges  in  the  Exchequer  Chamber, 
in  the  case  of  Manby  v.  Scott  {k).  The  discussions  in 
this  case  were  exceedingly  long  and  elaborate ;  and,  as 
frequently  happens  in  the  old  reports,  the  reasons  given 
in  some  instances  almost  ludicrous;  for  instance,  Mr. 
Justice  Twisden,  who  was  at  first  of  opinion  that  it  was 
not  in  the  husband's  power  to  prohibit  another  from 
trusting  his  wife  for  necessaries,  gave  as  a  reason  that, 
if  he  might  prohibit  one  person  he  might  go  on  doing 
so  till  he  had  at  last  jDrohibited  every  one  in  England ; 
and  then,  says  he,  "  If  the  husband  should  adopt  this 
method,  and  join  the  King's  enemies,  the  wife  must  go 
too,  and  then  she  will  be  hanged — or  stay  at  home,  and 
then  she  will  be  starved."  However,  the  majority  of 
the  Court  were  of  opinion  that  the  husband  may  pro- 
hibit a  particular  person  from  trusting  his  wife  even  for 
necessaries,  and  that,  if  he  trust  her  in  defiance  of  that 
prohibition,  he  cannot  hold  the  husband  liable.^ 

(k)  1  Lev.  4 ;  1  Siderfin,  109 ;  2  Smith  L.  C.  445,  8th  ed. ;  Bac.  Abr. 
"  Earon  &  Feme." 


^  When  a  party  has  been  expressly  forbidden  to  give  credit  to  a  wife,  in 
order  to  render  the  husband  liable  for  subsequent  supplies,  it  is  incumbent  on 
the  party  so  forbidden  to  show  affirmatively  and  clearly  that  the  husUSind  did 
not  supply  her  with  necessaries  suitable  to  her  condition  in  life :  Keller  v. 
Phillips,  40  Barb.  390. 

*  It  must  not,  however,  be  supposed  that  a  husband  will  not  be  liable  for 
necessaries  furnished  the  wife,  when  he,  without  fault  on  her  part,  refuses  to 
supply  lier  with  them,  even  although  he  may  have  given  notice  not  to  trust 
her.  It  is  only  when  he  himself  supplies  her  with  necessaries  that  a  notice 
will  be  effectual  to  protect  him :  Eotch  r.  Miles,  2  Conn.  638 ;  Kimball  v. 
Keyes,  11  Wend.  33 ;  Emery  v.  Neighbour,  7  N.  J.  142  ;  Billing  v.  Pilcher,  7 
B.  Mon.  458  :  Fredd  v.  Eves,  4  Harring.  385 ;  and  it  would  seem  that  in  any 
case  notice  by  newspaper  is  insufficient,  unless  it  was  proved  to  have  reached 

496 


LECT.  X.]  WIVES.  490 

But  the  prohibition  of  the  tradesman  to  trust    hmqi-] 
'•'the  wife  need  not  always  be  an  express  prohi- 


tlie  party  who  supplied  the  articles :  Fredd  v.  Eves.  In  such  cases  as  these 
the  husband  is  liable  without  his  assent,  and  hence  his  liability  necessarily 
rests  on  other  grounds  than  those  springing  from  the  law  of  principal  and 
agent,  as  is  clearly  shown  in  the  American  note  to  Manby  v.  Scott,  2  Smith's 
L.  C,  8th  Am  Ed.  458.— k. 

Harshaw  v.  Merry  man,  18  Mo.  106.  The  husband  is  bound  to  pay  for 
necessaries  furnished  to  the  wife,  unless  he  has  made  other  suitable  provision 
for  her :  Tebbetts  v.  Hapgood,  34  N.  H.  420.  Recovery  can  be  had  for  sup- 
plies to  a  wife  during  separation  only  when  it  was  caused  by  the  misconduct 
of  the  husband,  or  was  by  mutual  consent  without  adequate  allowance  for  the 
wife's  support:  Reese  v.  Chilton,  26  Mo.  598  It  is  wholly  unaffected  by  the 
creditor's  knowledge  or  ignorance  of  the  facts  on  which  the  liability  depends: 
Gill  V-  Read,  5  R.  I.  343.  And  see  further,  "Williams  v.  Coward,  1  Grant,  21. 
If  a  wife  leave  her  husband  without  his  consent  or  fault,  he  is  not  liable  even 
for  necessaries,  unless  furnished  by  his  orders :  Collins  r.  Mitchell,  5  Harring. 
369;  Kemp  v.  Downham,  lb.  417;  Pool  v.  Everton,  5  Jones,  241 ;  IMorgan  v. 
Hughes,  20  Tex.  141  ;  Black  v.  Bryan,  18  lb.  453 ;  Descelles  v.  Kadmus,  8 
Iowa,  51;  Mayhew  v.  Thayer,  8  Gray,  172;  Rea  v.  Durkee,  25  111.  503; 
Cromwell  v.  Benjamin,  41  Barb.  558.  As  to  what  are  necessaries,  see  Hall  v. 
Weir,  1  Allen,  261.— s. 

The  following  have  been  held  to  be  necessaries — Board,  lodging,  medicine, 
and  medical  attendance:  Mayhew  t;.  Thayer,  8  Gray,  172;  Cotteran  v.  Lee, 
24  Ala.  380 ;  Spann  v.  Mercer,  8  Neb.  357  ;  articles  of  wearing  apparel  and 
jewelry  suitable  to  the  wife's  position :  Morton  v.  Wethens,  Skin.  348 ; 
Raynes  v.  Bennett,  114  Mass.  424;  proper  legal  expenses  in  proceedings 
against  the  husband  :  Shepherd  v.  Mackord,  3  Camp.  326 ;  Wilson  v.  Ford,  L 
R.  3,  Ex.  63 ;  Porter  v.  Briggs,  38  Iowa,  166 ;  Warner  v.  Heiden,  28  Wis. 
517  ;  Morris  v.  Palmer,  39  N.  II.  123;  ti\e  services  of  a  dentist :  Freeman  v. 
Holmes,  62  Ga.  556 ;  Gilraan  v.  Andrews,  28  Yt.  241.  On  the  contrary,  it  has 
been  held  that  the  following  are  not  necessaries  :  The  expense  of  unwarranted 
legal  proceedings  against  the  husband:  Grindell  v.  Godmond,  5  Ad.  &  El. 
(31  E.  C.  L.  R  )  255  ;  Smith  v.  Davis,  45  N.  H.  566;  Whipple  v.  Gates,  55  lb. 
1.S9 ;  Pearson  v.  Darrington,  32  Ala.  227 ;  Thompson  v.  Thompson,  3  Head, 
527 ;  Chelton  v.  Pendleton,  18  Conn.  417  ;  Drais  v.  Hogan,  50  Cal.  121  ;  medi- 
cal attendance  rendered,  without  the  husband's  assent,  by  a  quack  doctor : 
Wood  V.  O'Kelley,  8  Cush.  406  (see,  however,  M'Clallan  v.  Adams,  19  Pick. 
333);  religious  instruction  or  the  rent  of  a  pew  in  a  church:  St.  John's 
Parish  v.  Bronson,  40  Conn.  76. 

In  Parke  v.  Kleeber,  37  Pa.  St.  251,  which  was  an  action  for  the  price  of  a. 
piano.  Woodman,  J.,  said  :  "  It  is  impossible  to  state  a  comprehensive  defini- 
tion of  family  necessaries.  They  must  be  left  for  cases  to  define  as  cases 
arise.  It  is  not  to  be  doubted  that  in  some  circumstances  a  piano  would  be 
necessary  to  the  support  of  a  family,  as  where  the  wife  should  teach  music  for 
a  livelihood,  or  a  daughter  was  to  be  educated,  for   education  may  fairly 

32  497 ' 


491  CONTRACTS    BY    AGEXTS.  [lECT.  X. 

bition  communicnted  to  him.  A  general  proliibition  to 
the  wife  to  2:)ledge  the  husband's  credit  may,  though 
uncommunicated  to  the  tradesman,  be  sufficient  to  pre- 
vent his  hokling  the  husband  liable.  Thus  in  the  case 
of  Jolly  V.  Rees  (/)  it  was  held,  "that  the  presum2:)tion 
which  exists  during  cohabitation,  and  from  that  cir- 
cumstance, that  the  husband  assents  to  contracts  made 
by  the  wife  for  necessaries  suitable  to  his  degree  and 
credit,  may  be  rebutted  by  shoumig  that  he  has  forbidden 
his  wife  to  pledge  his  credit,  although  no  7iotice  of  that 
fact  has  been  communicated  to  the  tradesman  ^^  (m). 
This  case  has  been  followed  by  both  the  Court  of 
Appeal  and  the  House  of  Lords  in  the  case  of  Deben- 
ham  V.  Mellon  (n).  But  in  order  to  make  such  a 
secret  revocation  of  authority  binding  there  must  have 
been  nothing  in  the  previous  conduct  of  the  husband 
to  lead  the  particular  tradesman  to  think  that  the  wife 
was  authorized  to  pledge  the  husband's  credit.  If 
there  had  been  such  conduct  the  husband  would  not  be 
allowed  to  deny  the  authority  (o).  In  fact  the  general 
law  of  agency  in  this  respect  is  strictly  aj)plicable   (p). 

'''The  points  which  we  have  been  hitherto  con- 
r  4921      •      . 

'-  ^-'  sidering  all  arise  in  cases  in  which  the  hus- 
band and  wife  continue  to  live  together.     But  if  the 

(0  15  C.  B.  (N.  S.)  (109  E.  C.  L.  E.)  628  ;  33  L.  J.  (C.  P.)  177. 

(m)  2  Smith  L.  C.  499,  8th  edit,  (note  to  Manby  v.  Scott). 

(«)  5  Q.  B.  D.  394  (C.  A.) ;  6  App.  Cas.  24  (H.  L.) ;  49  L.  J.  (Q.  B.,  etc.) 
497  ;  50  lb.  155. 

(o)  Jolly  V.  Rees,  15  C.  B.  N.  S.  (109  E.  C.  L.  E.)  628,  640 ;  33  L.  J.  (C.  P.) 
177,  179. 

(p)  See  ante,  p.  *418. 


enough  be  included  in  the  word  support.  In  other  circumstances  it  would  be 
a  luxur3'  and  not  a  necessity.  The  best  the  judge  could  do  with  such  a  ques- 
tion was  to  commit  it  to  the  jury  under  all  the  evidence,  and  to  accompany  it, 
as  was  done  in  this  case,  with  observations  calculated  to  give  the  deliberations 
of  the  jury  a  right  direction."  But  see  Chappell  v.  Nunn,  41  L.  T.  N.  S. 
287. 

498 


LECT.  X.]  WIVES.  492 

wife,  when  she  makes  the  contract,  is  living  separated 
from  her  husband,  the  case  is  quite  different ;  and  the 
only  question  is,  whether  the  separation  is  with  the  hus- 
band's assent,  or  produced  by  the  husband's  misconduct. 
If  the  husband  drive  his  wife  from  home,  or  if  he  do  so 
misconduct  himself  that  it  is  uiorally  impossible  and 
unreasonable  that  she  should  continue  to  reside  in  his 
house,  he  sends  her  into  the  world  with  authority  tO' 
pledge  his  credit  for  her  necessary  expenses.  And  this 
authority  he  cannot  revoke  or  control  by  any  notice  or 
prohibition  whatever.  "  If  a  man,"  said  Lord  Eldon,  in 
Rawly ns  v.  Vandyke  {q),  "  will  not  receive  his  wife  into 
his  house,  or  turns  her  out  of  doors,  he  sends  her  with 
credit  for  her  reasonable  expenses."  "  Wiiere  a  wife's 
situation  in  her  husband's  house,"  says  Lord  Kenyon,  in 
Hodges  V.  Hodges  [r),  ''is  rendered  unsafe  from  his 
cruelty  and  ill-treatment,  I  shall  rule  it  to  be  equivalent 
to  his  turning  her  out  of  the  house,  and  that  the  hus- 
band shall  be  liable  for  necessaries  furnished  to  her 
under  those  circumstances"  is)}     Even  if  the  husband 

{q)  3  Esp.  250. 
(r)  1  Esp.  441. 

(s)  See  Houliston  v.  Smyth,  3  Bing.  (11  E.  C.  L.  E.)  127 ;  Bolton  v.  Pren- 
tice, 2  Str.  1214. 


^  See  also  Sykes  v.  Halstead,  1  Sand.  483 ;  Rutherford  v.  Coxe,  11  Mo.  347 ; 
Evans  v.  Fisher,  5  Gilm.  569  ;  Fredd  v.  Eves,  4  Harring.  385 ;  Pidgin  v.  Cram, 
8  N.  H.  350 ;  Clement  v.  Mattison,  3  Pich.  93.  And  it  is  not  necessary  that 
actual  bodily  cruelty  should  be  used  to  her,  as  it  has  been  held  (overruling 
Harwood  v.  Heffer,  3  Taunt.  421)  that  if  a  husband,  by  bringing  another  wo- 
man to  live  under  his  roof  as  a  mistress,  thereby  renders  his  house  unfit  for 
the  residence  of  his  wife,  he  is  bound  to  provide  her  with  necessaries  during 
the  separation  :  Aldis  v.  Chapman,  T.  T.  50  Geo.  III.,  cited  1  Selwyn's  N.  P.  298 ; 
Houliston  V.  Smyth,  3  Bing.  (11  E.  C.  L.  R.)  127;  Blowers  v.  Sturtevant,  4 
Den.  46.  As  in  the  case  of  an  infant,  however,  the  husband  is  not  liable  for 
money  lent  to  enable  her  to  procure  necessaries :  Walker  v.  Simpson,  7  W.  & 
S.  83. — R,  And  see  Snover  v.  Blair,  25  N.  J.  94.  If  the  husband  secures  to 
the  wife  a  separate  maintenance,  and  pays  it,  he  is  not  liable :  Calkins  v.  Long, 
22  Barb.  97.— s. 

499 


492  CONTRACTS    BY    AGENTS.  [lECT.  X. 

become  ^lunatic,  and  therefore  unable  to  pro- 
'-  -I  vide  his  wife  with  necessaries,  he  is  in  the  same 
situation  as  a  husband  omitting  to  furnish  them  {t). 
But  the  authority  of  the  wife  to  pledge  her  husband's 
credit  is  no  greater  in  the  case  of  a  lunatic  than  in  the 
ordinary  case  of  husband  and  wife  (u). 

In  like  manner,  if  the  husband  and  wife  mutually 
consent  to  live  apart,  she  has  a  right  to  bind  him  by 
contracting  for  her  reasonable  and  necessary  expenses 
as  long  as  the  consent  continues  {x)}  But  in  those  cases 
in  which  the  wife,  living  apart  from  her  husband,  has 
authority  to  bind  him  by  contracts  for  necessaries,  if  he 
allow  and  pay  her  a  sufficient  maintenance,  the  authority 
is  gone,  and  her  contracts,  even  for  necessaries,  will  not 
bind  him ;  the  reason  of  which  is,  that  the  authority  is 
given  by  law  for  the  wife's  protection,  to  save  her  from 
distress  occasioned  by  her  husband's  misconduct ;  but 
if  he  make  her  a  proper  allowance,  and  pay  it,  there  is 
no  such  danger;  and  then  cessanie  ratione  cessat  lex ;" 
thus  in  Mizen  v.  Pick  [y),  the  Court  of  Exchequer  de- 
cided that  it  makes  no  difference  that  the  tradesman, 
when  he  trusts  the  *wife,  has  no  notice  that  her 
L     '    ^    husband  makes  her   an    adequate   allowance.* 

{t)  Eead  v.  Legard,  6  Ex.  636 ;  and  see  ante,  p.  *362. 

(«)  Richardson  v.  Du  Bois,  L.  R.  5  Q.  B.  51 ;  39  L.  J.  (Q.  B.)  69. 

(x)  Hodgkinson  v.  Fletcher,  4  Camp.  70 ;  Nurse  v.  Craig,  2  Bos.  &  P.  N.  R.  148. 

{y)  3  M.  &  W.  481 ;  Johnson  v.  Sumner,  27  L.  J.  (Ex.)  341 ;  3  H.  &  N.  261. 
See  Jolly  v.  Rees,  15  C.  B.  (N.  S.)  (109  E.  C.  L.  R.)  628 ;  33  L.  J.  (C.  P.)  177 ; 
Biffin  V.  Bignell,  31  L.  J.  (Ex.)  189 ;  7  H.  &  N.  877. 

^  And  not  only  for  necessaries  furnished  to  herself,  but  to  the  children  of 
the  marriage,  if  he  suffer  them  to  remain  with  her:  Rumney  v.  Keyes,  7  N, 
H.  571 ;  Kimball  v.  Keyes,  11  Wend.  33.— R.  Walker  v.  Laighton,  31  N.  H 
111.— s. 

*  Cany  ?;.  Patton,  2  Asbm.  140 ;  Baker  v.  Barney,  8  Johns.  72 ;  Fenner  *, 
Lewis,  10  lb.  38 ;  Mott  v.  Comstock,  8  Wend.  544;  Kimball  f.  Keyes,  11  lb.  33. 

— R. 

^  The  same  point  had  been  so  previously  decided  in  this  country  in  Cany  v. 
Patton,  2  Ashm.  140.— R. 
600 


LECT.  X.]  WIVES.  491 

And  if  the  wife  when  living  separate  has  a  sufficient 
maintenance,  though  not  paid  by  her  husband,  supplies 
furnished  to  her  cannot  be  necessaries  for  which  he  is 
liable  {z).  But  where  they  separate  by  mutual  consent, 
at  the  time  of  the  separation  making  their  own  terms, 
then  so  long  as  they  continue  the  separation  those  terms 
arc  binding  on  both ;  and  if  the  terms  are  that  the  wife 
shall  receive  a  specified  income  for  maintenance  and 
shall  not  apply  for  anything  more,  then  she  has  a  pro- 
vision which  she  agrees  to  accept  as  sufficient.  There- 
fore, at  all  events  as  long  as  the  husband  fulfils  the 
terms  on  his  part,  the  authority  to  pledge  his  credit  for 
necessaries  is  gone,  the  adequacy  of  the  income  is  im- 
material, and  the  husband  is  no  longer  liable  (a). 

Thus,  you  see  that  if  the  wife  be  driven  from  home 
by  the  husband's  misconduct,  or  if  they  separate  by 
mutual  consent,  she  carries  with  her  an  implied  author- 
ity to  pledge  his  credit  so  long  as  that  separation  con- 
tinues, unless  he  pay  her  an  allowance  adequate  to  her 
sup]3ort  and  his  own  means,  or  unless  she  has  a  provi- 
sion which  either  is  in  fact  sufficient,  or  which  she  has 
agreed  to  *accept  as  such.  But,  when  the  sepa-  .. 
ration  is  occasioned  neither  by  his  misconduct  ^  -■ 
nor  consent,  the  case  is  otherwise.  In  such  case  she  has 
no  authority  at  all  to  j)ledge  her  husband's  credit,  and 
the  person  who  contracts  with  her  does  so  at  his  peril  (b)} 

(2)  Clifford  V.  Laton,  M.  &  M.  (22  E.  C.  L.  R.)  101 ;  see  also  Richardson  v. 
Du  Bois,  L.  R.  5  Q  B.  51,  39  L.  J.  (Q.  B.)  69. 

(a)  Eastland  v.  Burchell,  3  Q.  B.  D.  432;  47  L.  J.  (Q.  B.,  etc.)  500. 

(6)  Hardie  v.  Grant,  8  C.  &  P.  (34  E.  C.  L.  R.)  512;  Morris  v.  Martin,  1 
Sir,  647. 


^  And  it  is  immaterial  whether  he  does  or  does  not  know  of  the  wife's  hav- 
ing left  her  husband  :  Hunter  v.  Boucher,  3  Pick.  289  ;  M'Cutchen  r.  M'Galiay, 
11  Johns.  281;  Walker  v.  Simpson,  7  W.  &  S.  83;  Evans  v.  Fisher,  5  Gilm. 
569.  The  rule  admits  of  no  exception,  of  course,  in  the  ca.se  of  necessaries: 
Williams  v.  Prince,  3  Strob.  490.     And  even  if  the  husband  and  wife  have 

501 


495  CONTRACTS    BY    AGENTS.  [lECT.  X. 

And  where  a  married  woman  is  found  living  apart  from 
her  husband,  the  prima  facie  presumption  is,  that  it  is 
neither  in  consequence  of  liis  improper  conduct  nor  by 
his  assent,  and  therefore  it  always  lies  on  the  person 
who  gave  her  credit  to  show  what  were  the  circum- 
stances under  which  they  were  separated  (c). 

It  only  remains  to  observe  that,  where  the  wife,  in 
consequence  of  the  circumstances  under  which  she  sepa- 
rated from  her  husband,  has  authority  to  bind  him  by 
contracts,  those  contracts  must  be  for  necessaries  suit- 
able to  his  rank  and  means.  What  are  such  neces- 
saries, is  a  question  which  of  course  turns  on  the 
particular  circumstances  of  each  case  {d).     There  are 

(c)  Keed  v.  Moore,  5  Car.  &  P.  (24  E.  C.  L.  R.)  200 ;  Mainwaring  v.  Leslie, 
M.  &  M.  (22  E.  C.  L.  E.)  18;  Edwards  v.  Towells,  5  M.  &  G.  (44  E.  C.  L.  R.) 
624. 

{d)  Hunt  V.  De  Blaquiere,  5  Ring.  (15  E.  C.  L.  R.)  550;  Ewers  v.  Hutton,  3 
Esp.  255.  See  also  Ambrose  v.  Harrison,  20  L.  J.  (C.  P.j  135  ;  10  C.  B.  (70 
E.  C.  L.  R.)  776  ;  Bradshaw  v.  Beard,  31  L.  J.  (C.  P.)  273;  12  C.  B.  (N.  S.) 
(104  E.  C.  L.  R.)  344.  In  the  two  last  cases  the  husband  was  held  liable  for 
the  funeral  expenses  of  his  wife,  who  was  living  apart  from  him.  As  to  the 
right  (originally  equitable  only)  to  recover  from  the  husband  money  advanced 
to  his  wife  iia  order  to  be  expended  in  necessaries,  see  per  Bramwell,  L.  J.,  in 
Drew  V.  Nunn,  4  Q.  B.  D.  661,  663 ;  Jenner  v.  Morris,  3  De  G.  F.  &  J.  45 ; 
80  L.  J.  (Ch.)  361 ;  Davidson  v.  Wood,  1  De  G.  J.  &  S.  465;  32  L.  J.  (Ch.) 
400. 


separated  by  mutual  consent,  and  the  wife  goes  to  live  in  the  house  of  a  third 
person,  with  whom  the  husband  makes  a  contract  to  support  her,  if  she  leave 
the  house  of  that  person  voluntarily  and  without  just  cause,  she  will  carry 
with  her  no  authority  to  pledge  his  credit  for  her  support,  though  if  she  were 
driven  from  inat  house  by  improper  usage,  it  vrould  be  different :  Pidgin  v. 
Cram,  8  N.  H.  350.  In  civse,  however,  the  wife  should  return  to  her  husband, 
or  even  should  in  good  faith  offer  to  return  to  him  (and  the  question  of  such 
good  faith  is  one  upon  the  evidence  for  the  jury :  Cunningham  v.  Irwin,  7  S. 
&  R.  259 ),  his  liability  is  revived  from  the  time  of  such  return  or  offer  :  Harris 
t'.  Morris,  4  Esp.  41;  M'Gahay  v.  Williams,  12  Johns.  293;  Henderson  v. 
Stringer,  2  Dana,  292;  Rennick  v.  Ficklin,  3  B.  Mon.  166;  Cunningham  v. 
Irwin,  svpra;  Blowers  v.  Sturtevant,  4  Den.  46.  The  husband  is  not,  how- 
ever, liable  for  anything  furnished  to  the  wife  during  the  interval  between  her 
leaving  him  and  her  return :  "Williams  v.  Prince,  3  Strob.  490. — K, 

602 


LECT.  X.]  WIVES.  495 

two  modern  cases  involving  ^rather  singular  piMOf^-i 
questions:  Turner  t?.  Kookes  (e),  and  Grindell 
V.  Godmond  (/).  In  Turner  v.  Rookes  the  husband 
and  wife  were  living  separate  by  consent,  under  a  deed 
of  separation,  by  which  she  had  a  separate  maintenance 
of  £112  a  year;  so  that,  as  long  as  that  was  paid,  she 
would  have  no  authority  to  bind  the  husband  for  neces- 
saries of  an  ordinary  description  ;  but  it  appeared  that 
the  husband  had  used  threats  of  violence  towards  her, 
which  occasioned  her  so  much  alarm  that  she  thought 
it  necessary  to  exhibit  articles  of  the  peace  against  him. 
In  order  to  do  this  she  was  obliged  to  employ  an 
attorney,  and  not  being  able  to  pay  his  bill  of  costs,  he 
brought  his  action  to  recover  it  against  the  husband. 
The  Court  held  that  the  proceeding  was  necessary  for 
the  wife's  safety ;  and,  therefore,  that  she  had  a  right 
to  bind  the  husband  by  contracting  for  it ;  and  that, 
though  the  maintenance  allowed  her  might  be  sufficient 
for  ordinary  purposes,  yet  this  was  an  extraordinary 
contingency  not  likely  to  have  been  contemplated  in 
arranging  the  amount  of  maintenance,  and  which  there- 
fore was  not  covered  by  it ;  and  they  held  the  husband 
liable,  as  having,  through  his  *wife,  employed  piMor-i 
the  attorney  to  exhibit  articles  of  the  peace 
asfainst  himself. 

The  other  case  was  one  in  which  the  husband  had 
assaulted  and  ill-treated  his  wife,  who  preferred  an  in- 
dictment against  him  at  the  Beverley  sessions,  upon 
which  he  was  convicted,  and  sentenced  to  twelve 
months'  imprisonment,  and  a  fine  of  £50.  The  attor- 
ney who  conducted  the  prosecution,  thinking,  very 
correctly,  that  if  he  carried  it  on  without  funds,  he 
would  have  no  remedy  against  any  one,  required  money 

(e)  10  A.  &  E.  (37  E.  C.  L.  R)  47. 
(/)  5  A.  &  E.  (31  E.  C.  L.  E.)  755. 

503 


497  PAETTES    TO    CONTRACTS.  [lECT.  X. 

in  hand,  which  the  lady  borrowed  from  her  brother, 
and  he  brought  an  action  against  the  husband  to  be 
reimbursed ;  but  the  Court  thought  that,  though  it 
might  be  necessary  that  she  should  exhibit  articles  of 
the  peace  for  her  own  personal  security,  yet  that  it  could 
not  be  necessary  that  she  should  assume  the  offensive, 
and  jDrefer  an  indictment  against  him,  and,  conse- 
quently, that  the  plaintiff  was  not  entitled  to  recover. 
In  a  later  case  upon  this  subject,  the  costs  of  a  proctor 
employed  by  a  wife  to  prosecute  a  suit  in  the  Ecclesias- 
tical Court  against  her  husband  for  a  divorce  a  mensd 
et  thoro,  on  the  ground  of  cruelty,  were  held  to  be 
recoverable  against  the  husband,  as  a  necessary,  if  it 
appeared  that  there  were  reasonable  grounds  for  in- 
stituting such  a  suit ;  for  where  there  had  been  cruelty 
such  a  divorce  might  be  necessary  for  the  protection  of 
the  wife,  and  where  she  had  no  means  of  her  own  she 
would  lose  that  protection,  unless  she  could  pledge  her 
T*4Qm  *l^usband's  credit  {g).  In  a  still  more  recent 
case  (A)  the  legal  expenses  incurred  by  a  de- 
serted wife, — (1)  preliminary  and  incidental  to  a  suit 
for  restitution  of  conjugal  rights;  (2)  in  obtaining 
counsel's  opinion  on  the  effect  of  an  ante-nuptial  agree- 
ment for  a  settlement;  (3)  in  obtaining  professional 
advice  as  to  the  proper  mode  of  dealing  with  trades- 
people, who  were  pressing  her  to  pay  them  for  neces- 
saries supplied  to  her  since  she  had  been  deserted,  and 
also  of  preventing  a  distress  threatened  on  furniture 
belonging  to  her  husband  in  the  house  she  occupied ; 

•     ig)  Brown  v.  Ackroid,  25  L.  J.  (Q.  B.)  193 ;  5  E.  &  B.  (85  E.  C.  L.  E.)  819, 
826 ;  per  Lord  Campbell,  C.  J. 

{h)  Wilson  V.  Ford,  L.  R.  3  Ex.  63 ;  37  L.  J.  (Ex.)  60.  Where  it  is  neces- 
sary for  the  wife  to  take  proceedings  under  the  Divorce  Acts,  "  extra  costs," 
i.  e.,  costs  reasonably  incurred  by  the  solicitor  beyond  the  costs  taxed  and 
allowed  as  between  party  and  party  are  recoverable  by  him  from  the  husband 
a*  necessaries:  Ottaway  v.  Hamilton,  3  C.  P.  D.  393  ;  47  L.  J.  (Q.  B.,  etc.)  424, 
725. 

504 


LECT.  X.]  EECAPITULATION".  498 

were  held  to  be  necessaries  for  wliicli  she  had  implied 
authority  to  pledge  his  credit. 

The  wife  also  may,  under  some  circumstances,  pledge 
her  husband's  credit  for  such  necessaries  for  their  chil- 
dren as  may  be  reasonable  with  reference  to  the  hus- 
band's station.  Thus  in  Bazeley  v.  Forder  (i),  the 
plaintiff,  on  the  order  of  the  defendant's  wife,  supplied 
clothes  for  the  defendant's  child ;  the  wife  was  living 
separate  from  liim,  for  reasons  which  justified  her  doing 
so,  and  the  child,  *which  was  under  seven  years  r.  .^.q-, 
of  age,  was  living  with  her,  against  the  defend-  ^  -^ 
ant's  will,  an  order  of  the  Master  of  the  Rolls  having 
been  made,  under  2  &  3  Vict.,  c.  54,  giving  the  wife 
the  custody.  The  wife  had  no  means  adequate  to  sup- 
port her  according  to  her  husband's  degree.  It  was 
held,  that,  as  the  child  was  by  law  jDroperly  in  the  care 
of  the  wife,  the  reasonable  expenses  of  providing  for  it 
were  part  of  the  reasonable  expenses  of  the  wife,  for 
which  she  had  authority  to  jjledge  her  husband's 
credit. 

The  whole  of  this  branch  of  the  law  may  be  shortly 
summed  up  thus :  while  a  wife  continues  to  live  witli 
her  husband,  the  presumption,  except  so  far  as  it  may 
be  qualified  by  s.  1,  sub-s.  3,  of  the  Married  Women's 
Property  Act,  1882,  already  referred  to  {ante,  p.  *487), 
is  that  she  has  authority  to  bind  him  by  contracting  for 
necessaries ;  but  that  presumption  is  subject  to  be  re- 
butted. When  she  is  living  separately  from  him,  the 
presumption  is  that  she  has  no  such  authority ;  but  that 
presumption  also  is  subject  to  be  rebutted,  by  showing 
that  the  separation  was  by  consent,  or  occasioned  by  the 
husband's  misconduct ;  in  which  cases,  if  he  leaves  her 
without  adequate  funds  for  her  support,  she  has  a  right 
to  pledge  his  credit  by  contracting  for  necessaries. 

(t)  L.  R.  3  Q.  B.  559 ;  37  L.  J.  (Q.  B.)  237 ;  in  Ex.  Ch.  9  B.  &  S.  725. 

605 


499  REMEDIES.  [lECT.  X. 

I  have  now  gone  througli  the  subject  which  I  pro- 
posed at  the  commencement  of  these  lectures,  with  the 
pj.  exception  of  the  last  point.    I  have  made  *men- 

L  -■  tion  of  the  different  sorts  of  contracts,  the  pe- 
culiarities of  those  by  record,  by  writing  sealed  and  de- 
livered, and  writing  not  under  seal ;  of  the  considera- 
tion which  a  simple  contract  requires  to  support  it ;  of 
the  effect  of  illegality,  whether  by  Common  or  Statute 
Law,  in  invalidating  contracts ;  of  the  competency  of 
the  parties,  and  of  the  rules  which  govern  contracts  en- 
tered into  by  those  parties  through  the  medium  of 
agents. 

It  remains  to  j)oint  out,  in  a  few  words,  the  remedies 
by  which  the  observance  of  contracts  may  be  enforced, 
and  their  non-observance  punished.  The  ordinary 
remed}''  for  breach  of  contract  is  by  an  action  claiming 
damages,  and,  where  damages  are  an  inadequate  com- 
pensation, claiming  specific  performance.  The  latter 
claim,  however,  would  not  be  applicable  to  by  far  the 
larger  proportion  of  the  contracts  considered  in  these 
lectures,  and  it  is  not  intended  to  pursue  the  subject  of 
specific  performance  further  (Jc).  These  lectures  only 
profess  to  deal  with  contracts  under  their  Common  Law 
aspect,  as  has  been  already  said  {ante,  p.  *98),  and  spe- 
cific performance  was,  before  the  Judicature  Acts,  the 
remedy  in  Courts  of  Equity  only.  There  a  specific 
performance  might,  as  you  know,  in  many  cases  be  com- 
pelled ;  there  was  no  such  thing  as  a  ^specific 
L  -J  performance  to  be  had  in  a  Court  of  law,  ex- 
cept in  the  cases  to  which  the  writ  of  mandamus  was 
applicable,  which  could,  however,  never  be  obtained 
when  there  was  any  other  remedy.     And  although  by 

{k)  For  further  information  as  to  the  principles  on  which  Courts  of  Equity- 
have  decreed  specific  performance,  see  Cuddee  v.  Rutter,  1  White  &  Tudor's 
L.  C.  in  Equity,  p.  848,  5th  ed.,  and  the  notes  thereto ;  see  also  Fry  on  Specific 
Performance. 

606 


LECT.  X.]  EEMEDIES.  501 

the  provisions  of  the  Common  Law  Procedure  Act, 
1854  (17  &  18  Vict.,  c.  125),  ss.  68-74,  the  remedy  of 
mandamus  was  extended,  yet  by  the  construction  put  by 
the  Courts  of  Common  Law  on  those  provisions,  the 
compelling  specific  performance  in  private  contracts 
could  not  be  said  to  be  within  their  jurisdiction.  For 
it  was  held  by  the  Court  of  Queen's  Bench  to  be  quite 
clear  that  the  statute  did  not  intend  to  give  a  Court  of 
Common  Law  the  j^ower  to  decree  specific  performance 
of  a  private  contract ;  and  where  the  duty  sought  to  be 
enforced  by  a  mandamus  arose  merely  upon  a  personal 
contract,  to  grant  a  mandamus  would  be  in  efiect  to  de- 
cree specific  performance  of  such  a  contract  {I).  Where, 
therefore,  the  plaintiff  agreed  to  let,  and  the  defendant 
to  take,  a  certain  house  upon  lease  for  seven  years  from 
a  day  ensuing,  the  lease  to  be  prepared  at  defendant's 
expense  and  executed  within  three  months,  and  there- 
upon the  plaintiff  did  prepare  the  lease,  but  the  defend- 
ant refused  to  execute  it,  upon  which  the  plaintiff  sued 
him,  and  in  his  declaration  claimed  a  writ  of  mandamus 
according  to  section  68  of  the  Common  Law  Procedure 
Act,  1854,  ••the  Court  held  that  that  Act  did  p^^^^n 
not  extend  to  enforce  this  duty,  which  arose  ^  J 
out  of  a  contract  merely  personal  (7/i). 

If  the  contract  be  by  record,  the  remedy  is  by  writ 
of  scire  facias  (n),  which  lies  only  upon  a  record,  and 
which  has  obtained  its  name  from  the  Latin  words 
it  formerly  contained,  commanding  the  sheriff  to  make 
the  defendant  know  that  the  Court  commanded  his  ap- 
pearance to  answer  why  execution  should  not  issue 
against  him. 

(I)  Norris  v.  Irish  Land  Ckimpany,  27  L.  J.  (Q.  B.)  115 ;  8  j?:.  &  B.  (92  E,  C. 
L.  K.)  512. 

(m)  Benson  v.  Paul,  25  L.  J.  (Q.  B.)  274;  6  E.  &  B.  (88  E.  C.  L.  E.)  273 

s.  a 

(n)  See  ante,  p.  *4. 

507 


502  REMEDIES.  |_LECT.  X. 

If  the  record  create  a  debt,  that  is,  render  a  sum  cer- 
tain payable  by  the  one  party  to  the  other,  an  action  in 
the  ordinary  form  will  lie  to  enforce  payment,  if  the 
plaintiff  prefer  that  form  of  proceeding  to  a  scire  facias. 

Formerly,  at  Common  Law,  there  were  distinct  forms 
of  action  applicable  to  the  breach  of  distinct  species  of 
contract ;  and  although  the  forms  of  action  have  been 
jDractically  abolished  (o),  yet  some  explanation  of  them 
seems  desirable,  in  order  to  understand  their  meaning  in 
the  Statutes  of  Limitation  to  the  consideration  of  which 
we  are  coming. 

The  action  of  debt  lay  in  every  case  where  there  was 
a  liquidated  pecuniary  duty  from  one  person  to  another. 
P50S1  ^^^  ^^^  contract  were  by  deed,  the  remedy 
was  by  action  of  covenant,  which  lay  to  enforce 
a  contract  by  deed,  for  which  it  was  the  only  remedy 
at  Common  Law,  unless  the  contract  were  for  payment 
of  a  liquidated  sum,  in  which  case,  as  I  have  already 
said,  the  plaintiff  miglit,  if  he  preferred  it,  maintain  an 
action  of  debt.  If  the  contract  were  neither  by  record 
nor  by  deed — if,  in  other  words,  it  was  a  simple  con- 
tract, either  reduced  to  writing,  or  by  mere  words  with- 
out writing, — the  remedy,  unless  it  were  for  payment 
of  a  fixed  sura  of  money,  in  which  case  debt  also 
would  lie,  was  by  an  action  of  assumpsit.  This  was 
originally  a  sort  of  action  of  trespass  upon  the  case, 
and  was  called  assumpsit  from  the  words  "undertook 
and  promised,"  which  always  appeared  in  the  declara- 
tion. When  the  Uniformity  of  Process  Act  (p)  was 
passed,  the  schedule  contained  a  form  of  writ  in  which 
it  was  described  as  an  action  on  promises ;  in  conse- 
quence of  which   it  was  most  commonly  denominated 

(o)  See  rules  of  the  Supreme  Court,  18S3,  O.  I.,  r.  1,  which  re-enacts  38  & 
39  Vict.,  c.  77  (Judicature  Act,  1875),  sched.  L,  order  I.,  rule  1. 
(^)  2  &  3  Will.  4,  c.  39. 
508 


LECT.  X.]  LIMITATION.  503 

an  action  on  promises.     It  was  the  great  remedy  upon 
the  breach  of  simple  contracts. 

There  was,  besides,  a  sort  of  action  called  an  action 
of  account,  which  had  become  almost  completely  obso- 
lete and  disused. 

Now,  these  being  the  remedies  by  which  contracts 
are  enforced  in  courts  of  law,  the  next  question  is,  as  to 
the  time  within  which  those  remedies  are  to  be  pur- 
sued :  and  those  times  depend  upon  *the  provi-  r:i:^A4-| 
sions  of  the  Acts  of  Parliament  which  we  call 
Statutes  of  Limitation. 

The  policy  of  the  Legislature  in  enacting  such 
statutes,  and  thereby  constituting  a  time  after  the  lapse 
of  which,  engagements  shall  be  no  longer  capable  of 
being  enforced,  has  always  been  considered  unexcep- 
tionable. 

When  you  find  a  debt  or  an  engagement  existing 
after  the  lapse  of  a  long  period  of  time,  it  is  possible, 
indeed,  that  strict  justice  may  require  its  enforcement, 
but  it  is  also  possible  that  great  injustice  may  be  done 
by  enforcing  it.  Suppose,  for  instance,  an  executor 
finds  a  bond  forty  years  old  in  his  testator's  repository, 
it  may  be  that  the  principal  and  interest  are  due  and 
unpaid,  but  it  may  also  be  that  they  have  been  paid ; 
or  that  great  part  has  been  paid,  and  that  the  vouchers 
have  been  lost ;  or  it  may  be  that  the  bond  was  de- 
posited with  the  testator  as  a  collateral  security,  and 
that  no  liability  ever  in  reality  accrued  upon  it,  but 
that  the  obligee  forgot  to  reclaim  it  or  died  pending  the 
suretyship,  leaving  his  representatives  in  ignorance  of 
the  transaction.  It  may  be  quite  impossible,  after  the 
lapse  of  forty  years,  to  prove  this.  Indeed,  it  may  be 
in  the  knowledge  of  no  person  living.  Now%  there 
would  be  the  greatest  hardship  in  calling  upon  a  man, 
after  the  lapse  of  an  indefinite  space  of  time,  to  defend 

609 


504  LIMITATION.  [lECT.  X. 

himself  against  such  a  demand ;  but  there  is  no  great 
hardship  imposed  on  the  obligee  by  requiring  him 
r*5Ar-]  *to  enforce  his  claim  within  a  reasonable  time, 
if  he  intend  to  enforce  it  at  all. 

This,  then,  is  the  policy  of  the  Statutes  of  Limita- 
tion— to  prevent  obsolete  claims  from  being  raked  up. 
And  now  as  to  the  time  which  the  Legislature  has 
appointed  for  the  purpose  of  pursuing  the  several 
remedies  of  which  I  have  spoken. 

With  regard  to  sch'e  facias,  tliere  was,  for  a  long 
while,  no  limitation  imposed  by  statute  to  the  com- 
mencement of  that  proceeding;  but  now,  by  3  &  4 
Will.  IV.,  c.  42,  s.  3,  a  scire  facias  on  a  recognizance 
must  be  sued  out  within  twenty  years. 

An  action  of  debt  founded  upon  a  contract  made  by 
deed  was  not  formerly  subject  to  any  limitation  in 
respect  of  the  time  within  which  it  might  be  com- 
menced :  not  that  you  are  to  suppose  that  there  was 
practically  no  security  against  an  obsolete  claim  founded 
on  a  deed,  for  the  Courts  had  introduced  a  presumption 
that  such  claims  were  satisfied  after  the  lapse  of  twenty 
years :  and  if  no  evidence  of  any  acknowledgment  of 
the  existence  of  the  claim  appeared  to  have  taken  place 
within  that  time,  they  recommended  the  jury  to  pre- 
sume payment  or  a  release,  as  the  nature  of  the  case 
happened  to  require ;  but  there  was  no  statute  which 
could  be  pleaded  in  bar  of  such  action  until  the  3 
&  4  Will.  IV.,  c.  42,  the  3rd  section  of  which  estab- 
lishes the  limitation  of  twenty  years,  and  is  as  fol- 
lows : — 

"  That  all  actions  of  debt  for  rent  upon  an  indenture 

rtHKricn    of  demise,  all  actions  of  covenant  or  debt  upon 

'""'any  bond  or  other  specialty,  and  all  actions  of 

debt  or  scire  facias  upon  any  recognizance,  and  also  all 

actions  of  debt  upon  any  award  where  the  submission 

610 


LECT.  X.]  LIMITATION.  50G 

is  not  by  specialty,  or  for  any  fine  clue  in  respect 
of  any  copyhold  estates,  or  for  any  escape,  or  for 
money  levied  on  any  fieri  facias,  and  all  actions  for  any 
penalties,  damages,  or  sums  of  money  given  to  the 
party  grieved,  by  any  statute  now  or  hereafter  to  be  in 
force,  that  shall  be  sued  or  brought  at  any  time  after 
the  end  of  the  present  session  of  Parliament,  shall  be 
commenced  and  sued  within  the  time  and  limitation 
liereiiiafter  expressed,  and  not  after  ;  that  is  to  say,  the 
said  actions  of  debt  for  rent  upon  any  indenture 
of  demise  or  covenant,  or  debt  upon  any  bond  or 
other  specialty,  actions  of  debt  or  scire  facias  upon 
recognizance,  ivithin  ten  years  after  the  end  of 
this  present  session  [a.  d.  1838],  or  ivithin  twenty 
years  after  the  cause  of  such  actions  or  suits,  but  not 
afterr 

It  will  be  observed  that  the  periods  of  limitation 
begin  to  run  from  the  accruing  of  tlie  cause  of  such 
actions  or  suits ;  and  for  this  reason,  where  it  is  sought 
to  investigate  the  question  when  a  cause  of  action  has 
accrued,  recourse  is  very  commonly  had  to  the  decis- 
ions upon  the  Statutes  of  Limitation.  In  the  case  of 
Tuckey  v.  Hawkins  [q),  the  defendant  pleaded  to  an 
action  of  debt  on  a  bond  that  the  cause  of  action  did 
not  accrue  at  any  time  within  twenty  *years  r:;:;^Ar-] 
next  before  the  commencement  of  the  suit,  and 
the  issue  raised  for  trial  was  upon  a  traverse  of  this 
averment.  On  the  bond  being  produced  at  the  trial, 
it  appeared  to  be  a  post  obit  bond,  and  it  was  proved 
that  the  party  upon  whose  death  the  sum  secured 
thereby  was  made  payable  died  within  twenty  years. 
It  was  held  that  the  verdict  ought  to  be  for  the  plain- 
tiff. In  the  course  of  his  judgment  in  that  case,  Wilde, 
C.  J.,  says:  "What  does  the  Legislature  mean  by  the 

(g)  4  C.  B.  (56  E.  C.  L.  E.)  655. 

511 


507  LIMITATIOX.  [lECT.  X. 

'cause  of  action'  ?  The  object  of  the  Statute  of  Limita- 
tions was  to  prevent  parties  from  being  harassed  by 
stale  demands,  brought  forward  against  them  at  a 
period  when  all  their  witnesses  might  reasonably  be 
presumed  to  be  dead,  and  when  the  circumstance  of  the 
plaintiff's  having  lain  by  so  long  without  challenging 
them  to  make  payment,  afforded  fair  ground  for  pre- 
suming that  the  debt  had  been  paid.  The  Legislature 
has  thought  twenty  years  a  convenient  period,  beyond 
which  the  obligor  in  a  bond  ought  to  be  relieved  from 
the  necessity  of  preserving  evidence  in  discharge  of  his 
liability.  Bearing  in  mind,  therefore,  that  the  sole 
object  of  the  Legislature  was  to  discharge  jDarties  from 
demands  that  might  and  ought  to  have  been  enforced 
at  an  earlier  period,  we  have  plain  means  of  ascertain- 
ing the  intention  with  which  they  used  the  words 
'cause  of  action,'  that  is,  a  cause  of  action  capable  of 
being  enforced.  We  must  read  the  words  'debt'  and 
r*^OS"l  '^^^^®  ^^  action'  in  the  plea  *in  the  same  sense 
in  which  the  statute  makes  such  a  plea  a  bar  to 
the  action.  What  then  is  the  meaning  of  this  j)lea  ? 
That  the  action  miglit  have  been  brought  more  than 
twenty  years  before  it  was  brought."  It  followed, 
therefore,  that,  as  the  action  could  not  have  been 
brought  till  after  the  death  which  made  the  money 
secured  by  the  bond  become  payable,  the  cause  of 
action  did  not  accrue  till  the  happening  of  that  event, 
and  the  plea  was  answered  by  the  replication  which 
traversed  or  denied  it.  But  if  a  bond  be  conditioned 
to  do  various  things,  the  first  breach  of  one  of  those 
conditions  is  not,  as  will  readily  be  supposed,  such  an 
accruing  of  the  cause  of  action  on  the  bond  as  will 
cause  the  statute  to  begin  to  run  so  as  to  prevent  the 
obligee  from  suing  for  subsequent  breaches  of  the  obli- 
gation to  do  other  of  those  things,  any  more  than  it 
612 


LECT.  X.J  LIMITATION.  508 

would  be  so  in  the  case  of  the  first  breach  of  a  cove- 
nant to  do  such  things  (r). 

The  action  of  covenant  is  liable  to  the  same  observa- 
tions as  the  action  of  debt  founded  on  a  deed ;  the  same 
section  of  3  &  4  Will.  IV.,  c.  42,  has  (as  you  will  ob- 
serve) applied  the  limitation  of  twenty  years  to  it  also. 

The  period  of  twenty  years  has,  however,  as  has  been 
already  noticed  (s),  in  the  case  of  certain  covenants  and 
bonds,  been  reduced  to  twelve  *years.  This  p.^-^^.-, 
change  has  been  effected  by  the  Keal  Property  '-  -' 
Limitation  Act,  1874  (37  &  38  Vict.,  t.  57),  s.  8  of 
which  imposes  the  limitation  of  twelve  years  on  actions 
and  suits  for  the  recovery  of  money  charged  on  land. . 

This  provision  extends  to  a  covenant  in  a  mortgage 
deed  to  2)ay  principal  and  interest.  The  remedy  there- 
fore uj)on  such  a  covenant  must  now  be  pursued  within 
twelve  years  (^).  And  a  collateral  bond  to  secure  a 
mortgage  debt  is  equally  within  that  section,  so  that  the 
remedy  upon  such  a  bond  must  be  pursued  within  twelve 
years  also  {u).  Similarly  an  action  on  a  covenant  to 
pay  rent  would  also  seem  to  be  an  action  to  recover 
rent  within  section  1  of  the  same  Act,  which  imposes 
the  same  limitation  of  twelve  years  on  such  an  action. 

Now,  from  these  limitations  thus  introduced  by  3  & 
4  Will.  IV.,  c.  42,  and  qualified  by  the  Act  of  1874, 
there  are  certain  excepted  cases. 

In  the  first  place,  by  the  4th  section  of  3  &  4  Will. 
IV.,  c.  42,  as  amended  by  19  &  20  Vict.,  c.  97  (Mer- 
cantile Law  Amendment  Act,  1856),  s.  10,  if  the  per- 
son entitled  to  bring  an  action  be  an  infant,  a  married 
woman,  or  an  insane  person,  the  time  runs  not  from  the 


(r)  Sanders  v.  Coward,  15  M.  &  W.  56. 

(s)  Ante,  p.  *38,  n.  (x). 

(0  Sutton  V.  Sutton,  22  Ch.  Div.  511 ;  52  L.  J.  (Ch.)  333. 

(w)  Fearnside  v.  FHnt,  22  Ch.  Div.  579 ;  52  L.  J.  (Ch.)  479. 

33  513 


509  LIMITATION.  [lECT.  X. 

accrual  of  the  right  of  action,  but  from  the  removal  of 
disability,  as  it  is  called. 

In  the  second  place,  if  the  defendant  be  beyond 
*seas,  the  time  runs  from  his  return;  that  i? 
L '^^^-l  also  by  the  Act  of  3  &  4  Will.  IV.  In  the 
case  of  joint  debtors,  the  fact  of  one  or  more  being  be- 
yond seas  at  the  time  of  the  accrual  of  the  cause  of  ac- 
tion, is  no  longer  a  bar  to  the  period  beginning  to  run 
MS  to  joint  debtors  in  the  kingdom  at  that  time  {x). 
Also,  in  the  case  of  an  action  to  recover  rent  within  the 
meaning  of  37  &  38  Vict.,  c.  57,  s.  1,  no  time  is  to  be 
allowed  for  absence  beyond  seas.  This  is  by  s.  4  of  the 
last- mentioned  Act. 

In  the  third  place,  if  an  acknowledgment  of  the  lia- 
bility be  given  in  writing,  signed  by  the  person  liable  or 
his  aoent,  the  time  runs  from  the  date  of  that  ac- 
know^ledgment.  This  is  by  sect.  5  of  3  &  4  Will.  IV., 
c.  42,  in  respect  of  specialty  contracts  unaffected  by  37 
&  38  Vict.,  c.  57  (Real  Property  Limitation  Act,  1874). 
It  is  important,  therefore,  to  ascertain  what  is  sufficient 
to  constitute  such  an  acknowledgment.  It  is  required 
by  the  statute  to  be  made  by  writing,  signed  by  the 
party  liable  by  virtue  of  such  indenture,  specialty,  or 
recognizance,  or  by  his  agent.^     Where  the  acknowl- 

(x)  19  &  20  Vict.,  c.  97,  s.  11.     The  effect  of  this  section  is  more  fully  con- 
sidered further  on. 


'  Statutes  like  that  of  3  &  4  Wm.  IV.,  c.  42,  have  been  enacted  in  Maine, 
Massachusetts,  New  York,  Mississippi,  Arkansas,  and  perhaps  in  some  of  the 
other  States:  Colburn  v.  Averill,  30  Me.  310;  Williams  r.  Gridley,  9  Mete. 
485  ;  Wadsworth  v.  Thomas,  7  Barb.  445 ;  Thornton  v.  Crisp,  14  Sm.  &  M.  52 ; 
Ringgold  V.  Dunn,  8  Ark.  497.  Apart  from  the  operation  of  such  statutes,  it 
is  now  very  generally  held,  on  both  sides  of  the  Atlantic,  that  the  fullest  ac- 
knowledgment of  a  debt  is  not  sufficient  to  take  the  case  out  of  the  limitation 
acts,  if  such  acknowledgment  be  accompanied  with  expressions  inconsistent 
with  a  definite  promise  to  pay.  Thus,  a  promise  to  make  an  arrangement  to 
pay  will  not  be  sufficient,  as  it  shows  that  tlie  defendant  instead  of  being  wil 

514 


J 


LECT.  X.]  LIMITATIOX.  510 

edgtnent  is  expressly  made  for  the  purpose  of  prevent- 
ing the  operation  of  the  statute,  no  difficulty  arises. 
But  where  admissions  have  been  made  for  other  pur- 
poses, and  it  is  sought  to  convert  them  into  equivalents 
for  the  acknowledgment  required  by  the  statute,  some 


ling  to  pay  the  debt  as  it  stands,  contemplates  paying  it  in  some  other  manner : 
Kensington  Bank  v.  Patton,  14  Pa.  St.  479;  Morgan  i'.  Walton,  4  lb.  322; 
Oakes  v.  Mitchell,  15  Me.  360.  So  the  statement  of  a  debt  in  an  insolvent 
petition,  for  the  circumstances  under  which  it  is  made  are  inconsistent  with  au 
immediate  provision  of  payment :  Christy  v.  Flemington,  10  Pa.  St.  129.  Sucli 
a  statement  as  "  I  owe  the  debt,  but  won't  pay  it,"  which  would  be,  under  the 
older  decisions,  entirely  sufficient  to  take  the  case  out  of  the  statute,  would  at 
the  present  day  be  wholly  insufficient:  Moore  v.  Bank  of  Columbia,  6  Pet.  92; 
Sigourney  r.  Drury,  14  Pick.  390 ;  Barnard  v.  Bartholomew,  22  lb.  291 ;  Mun- 
ford  V.  Freeman,  8  Mete.  432;  Allen  v.  Webster,  15  Wend.  284;  Berghaus  t». 
Calhoun,  6  Watts,  220 ;  Allison  v.  James,  9  lb.  381  ;  Kensington  Bank  v.  Pat- 
ton,  supra;  Carruth  v.  Paige,  22  Vt.  179  (approving  Phelps  v.  Stewart,  12  lb. 
256) ;  Ventris  v.  Shaw,  14  N.  H.  422  ;  Burton  v.  Wharton,  4  Harring.  296 ; 
Gardner  v.  M'Mahon,  3  Q.  B.  (43  E.  C.  L.  K.)  561  ;  Hart  v.  Prendergast,  14 
M.  &  W.  741.— R. 

Sherman  v.  Wakeman,  11  Barb.  254;  Harbold  v.  Kuntz,  16  Pa.  St.  21 ; 
Hazlebaker  v.  Reeves,  12  lb.  264;  Patterson  v.  Cobb,  4  Fla  481;  Ayres  i>. 
Richards,  12  111.  146  ;  Gillingham  v.  Gillingham,  17  Pa.  St.  302  ;  Bell  v.  Craw- 
ford, 8  Gratt.  110;  Moore  v.  Hyman,  13  Ired.  272;  Boxley  v.  Gayle,  19  Ala. 
151 ;  Bryan  v.  Ware,  20  lb.  687  ;  Grant  t;.  Ashley,  12  Ark.  762;  fen  Eyck  v. 
Wing,  1  Mich.  40 ;  Brainard  v.  Buck,  25  Vt.  573 ;  Deloach  v.  Turner,  6  Rich. 
117  ;  Pool  V.  Relfe,  23  Ala.  701  ;  Mitchell  v.  Clay,  8  Tex.  443;  Guy  v.  Tarns,  6 
Gill,  82 ;  Carroll  v.  Forsyth,  69  111.  127 ;  Blakeman  v.  Fonda,  41  Conn.  561 ; 
Patton  V.  Hassinger,  69  Pa.  St.  311 ;  Johns  v.  Lantz,  63  lb.  324;  M'Clelland  t». 
West,  59  lb.  487  ;  Hunter  v.  Kittredge's  Estate,  41  Vt.  359  ;  Brayton  v.  Rock- 
well, lb.  621  ;  Knight  v.  House,  29  Md.  194.  The  acknowledgment  must  be  to 
the  party  or  his  agent,  and  not  to  a  third  person  :  Carroll  v.  Forsyth,  69  111. 
127 ;  Sibert  v.  Wilder,  16  Kan.  176 ;  M'Kinney  v.  Snyder,  78  Pa.  St.  497  ; 
Trousdale  v.  Anderson,  9  Bush,  276 ;  Cape  Girardeau  Co.  v.  Harbison,  58  Mo. 
90.— s. 

In  Reed  on  the  Statute  of  Frauds,  ??  lOSO-1093,  and  note,  it  is  stated  that- 
the  new  undertaking  is  required  to  be  in  writing,  signed  by  the  party  to  be 
charged  thereby,  in  England,  Ireland,  Canada,  Alabama,  Arkansas,  California, 
Georgia,  Illinois,  Indiana,  Iowa,  Kansas,  Louisiana,  Maine,  Massachusetts, 
Minnesota,  Mississippi,  Missouri,  Nebraska,  Nevada,  New  Jersey,  New  York, 
North  Carolina,  Ohio,  Oregon,  South  Carolina,  Texas,  Vermont,  Virginia, 
West  Virginia,  W^isconsin,  Arizona,  Dakota,  Idaho,  Montana,  New  Mexico, 
Utah,  and  Wyoming ;  and  need  not  necessarily  be  in  writing  in  Colorado,  Con- 
necticut, Delaware,  Florida,  Kentucky,  Maryland,  New  Hampshire,  Pennsyl- 
vania, Rhode  Island,  and  Tennessee. 

515 


510  LIMITATION,  L^ECT.  X. 

nicety  occurs,  as  it  always  does  when  %  ques- 
•-         -'    tion  of  equivalents  arises.     Thus,  where  an  ac- 
tion was  brought  by  an  executor  on  a  covenant  in  an 
indenture  of  mortgage  executed  by  the  defendant  to  the 
testator  in  June,  1824,  to  secure  payment  of  the  money 
borrowed  and  interest,  and  the  defendant  relied  upon 
the  lapse  of  time  as  a  defence,  the  plaintiff  attempted  to 
prove  an  acknowledgment  by  giving  in  evidence  a  deed 
executed  within  twenty  years  by  the  defendant.     The 
deed  recited  the  execution  of  the  mortgage  by  the  de- 
fendant to  the  testator,  for  securing  certain  money  and 
interest,  and  stated  that  he  conveyed  the  property  mort- 
gaged, with  other  things,  to  trustees  to  sell,  and  to  pay 
out  of  the  proceeds  the   mortgage  and   other  incum- 
brances on  the  property ;  and  the  Court  of  Exchequer 
held  that  this  was  not  such  an  acknowledgment  as  was 
required  by  the  statute  (y),  not  being  an  admission  of 
any  existing  debt.     On  the  other  hand,  where  the  action 
was  on  a  covenant  in  a  mortgage-deed,  to  pay  the  plain- 
tiff principal  and  interest  on  the  1st  of  November,  1830, 
and  the  question  on  a  defence  of  the  Statute  of  Limita- 
tions was  upon  the  fact  of  an  acknowledgment  of  the 
debt,  the  plaintiff  proved  a  deed  of  conveyance  from 
the  defendant  to  Thompson  of  the  equity  of  redemption 
in  the  premises  mortgaged.     It  was  dated  within  twenty 
years,  and  after  reciting  the  mortgage-deed,  recited  also 
that  *the  principal  sum  still  remained  due  by 
L       '^^    virtue  of  that  deed,  all  the  interest  having  been 
paid   up   to  the   date.      It   also  contained  a  covenant 
by  Thompson  with  the  defendant   to  pay  the  princi- 
pal and  interest,  and  to  indemnify  the   defendant   in 
case  he   should  be  called  upon  to   pay  them.     "The 
deed,"  said  the  Court,  "  furnishes  amjde  evidence  that 
all  interest  was  paid  up  to  the  date;  for  that  fact  is 

(y)  Howcutt  V.  Bonser,  3  Exch.  491. 

516 


LECT.  X.]  LIMITATION.  512 

expressly  recited,  and   the  date  is  within  the  twenty 
years"  {z) 

A  similar  provision  as  to  the  operation  of  an  acknowl- 
edgment is  contained  in  37  &  88  Vict.,  e.  57  (Real 
Property  Limitation  Act,  1874),  s.  8,  with  reference  to 
contracts  within  the  meaning  of  that  section. 

In  the  fourth  place,  if  there  have  been  a  part  pay- 
ment, either  of  principal  or  interest,  the  time  runs  from 
such  payment :  this  is  by  sect.  5  of  3  &  4  Will.  IV.,  c. 
42 ;  and  also  by  sect.  8  of  37  &  38  Vict.,  c.  57,  as  to 
cases  within  the  latter  section. 

In  the  fifth  place,  if  an  action  have  been  brought, 
and  the  defendant  outlawed,  or  judgment  obtained 
'^against  him,  and  arrested  or  reversed  by  writ 
of  error,  a  new  action  may  be  commenced  '-  -^ 
within  a  year  after  the  reversal  of  the  outlawry  or  of 
the  judgment:  this  is  by  sect.  6  of  3  &  4  Will.  IV.,  c. 
42.  But  the  importance  of  this  enactment  is  much 
diminished  by  the  abolition  of  outlawry  in  civil  pro- 
ceedings by  42  &  43  Vict.,  c.  59  (Civil  Procedure  Acts 
Repeal  Act,  1879),  s.  3. 

Such  is  the  statutable  time  of  limitation  in  actions  on 
specialties,  which,  you  will  have  observed,  is  now  either 
twenty  years  or  twelve  years,  subject  to  the  above  ex- 
ceptions.    Now  with  regard  to  simple  contracts : — 

The  limitation  of  time  in  cases  of  actions  upon  simple 
contracts,  depends  upon  stat.  21  Jac.  I.,  c.  16,  which 
applies  both  to  assumpsit  and  to  debt  07i  simple  con- 
tract.    The  words  of  the  Act  are,  "  that  all  actions  of 


(z)  Forsyth  v.  Bristowe,  22  L.  J.  (Ex.)  2o5  ;  8  Ex.  347,  S.  C.  See  Morley 
V.  Morley,  5  De  G.  M.  &  G.  610;  25  L  J.  (Ch.)  1 ;  Roddara  v.  Morley,  25  L. 
J.  (Ch.)'329;  2  K.  &  J.  330;  reversed  in  26  L.  J.  (Ch.)  428  ;  1  De  G.  &  J.  1. 
See  further  Thorne  v.  Kerr,  25  L.  J.  (Ch.)  57  ;  2  Kay  &  J.  54 ;  Jortin  v.  S.  E. 
By.  Co.,  24  L.  J.  (Ch.)  343 ;  6  De  G.  M.  &  G.  270 ;  Burrowes  v.  Gore,  6  H.  L. 
a  907  ;  Dixon  v  Holdroyd,  27  L.  J.  (Q.  B.)  43  ;  7  E.  &  B.  (90  E.  C.  L.  R.)  903; 
Moodie  v.  Bannister,  28  L.  J.  (Cli.)  881  ;  4  Drew.  433. 

517 


513  LIMITATION.  [lECT.  X. 

account,  and  upon  the  case  (otlier  tlian  such  accounts 
as  concern  the  trade  of  merchandise  between  mercliant 
and  merchant,  their  factors  or  servants  (a)),  and  all 
actions  of  debt  grounded  upon  any  lending  or  contract 
without  specialty,  and  all  actions  of  debt  for  arrearages 
of  rent,  shall  be  commenced  and  sued  within  six  years 
next  after  the  cause  of  such  action  or  suit,  and  not 
--^  after."     Assumpsit,  as  I  have  explained  to  you, 

'-  -'  *was  originally  a  species  of  action  on  the 
case  {h).  It  therefore  falls  within  the  limitation  pre- 
scribed by  this  statute,  the  period  limited  by  wdnch  is, 
as  just  stated,  six  years. 

All  actions  upon  simple  contracts  must  therefore  be 
commenced  within  six  years,  unless  they  fall  within 
certain  classes  excepted  from  the  operation  of  the  statute 
of  James  I. 

In  the  first  place  that  statute  excepts  (c)  the  five 
cases  of  the  person  entitled  to  the  action  being  an  infant, 
married,  insane,  imprisoned,  or  beyond  seas  at  the  time 
of  tlie  accruing  of  the  right,  and  gives  six  years  from 
the  removal  of  the  disability. 

It  had  been  doubted  whether  this  proviso  applied  to 
the  case  of  a  foreigner  living  abroad,  because  if  he  came 
to  England  without  having  been  here  before,  he  could 
not  be  said  to  have  returned  from  beyond  seas,  as  it  is 
expressed  in  this  statute ;  and,  consequently,  there 
being  no  period  from  which  the  exceptional  six  years 
could,  in  this  case,  run,  he  was  not  within  the  j^roviso 
of  the  statute,  and  must  therefore  bring  his  action 
within  six  years  from  the  time  of  the  cause  of  action 
accruino;.     But  the  Common  Pleas  held  that  this  was 


(o)  This  exception  is  repealed  and  merchants'  accounts  are  subjected  to  tlie 
limitation  of  six  years,  by  19  &  20  Vict.,  c.  97,  s.  9  ;  see  pos<,  p.  *537. 
(6)  Battely  v.  Faulkner,  3  B.  &  Aid.  (5  E.  C.  L  E.)  294,  fcr  Holroyd,  J. 

(c)  Sect.  7. 

618 


LECT.  X.]  LIMITATION.  514 

not  so,  and  the  Chief  Justice  Jervis  said,  "  I  do  not 
think  the  fair  meaning  of  the  word  'return'  is,  to  refer 
it  to  the  coming  back  of  persons  who  have  been  here 
*before ;  I  think  the  meaning  of  the  proviso  is,  r^;--.  ^--i 
that  an  action  shall  not  be  commenced  after 
six  years,  but  if  the  plaintiff  was  abroad  when  the  light 
of  action  accrued,  then  when  he  comes  to  England  the 
statute  is  to  begin  to  run  against  him"  {d). 

But  it  has  been  thought  expedient  to  take  away  this 
exception  in  favour  of  persons  imprisoned  or  beyond 
seas ;  and  by  the  statute  19  &  20  Vict.,  c.  97,  s.  10,  no 
person  is  entitled  to  any  time  beyond  the  period  fixed 
by  the  previous  enactment,  to  commence  an  action  or 
suit,  by  reason  of  such  person,  or  one  or  more  of  such 
persons,  being  at  the  time  when  such  action  or  suit 
accrued  beyond  seas  or  imprisoned  (e).  This  section 
has  been  held  to  be  retrospective  so  far  as  to  include 
causes  of  action  that  accrued  before  19  &  20  Vict.,  c. 
97,  was  passed  (/). 

In  the  second  place,  the  statute  of  James  I.  also  con- 
tains the  exception,  in  the  case  of  the  defendant  being 
outlawed  [g),  or  the  judgment  reversed  or  arrested, 
which  I  have  just  cited  with  regard  to  actions  upon 
specialties.  Indeed,  the  one  is  copied  from  the  other. 
How^ever,  as  has  already  been  '^'said,  the  import-  p^..^^^-, 
ance  of  this  exception  is  much  diminished  by  ^  -• 
the  abolition  of  outlawry  on  civil  process. 

In  the  third  place,  if  the  defendant  be  beyond  seas 
when  the  right  accrued,  the  plaintiff  has  six  years  after 

{d)  Lafond  v.  Raddock,  22  L.  J.  (C.  P.)  217  ;  13  C.  B.  (76  E.  C.  L.  K.)  813, 
5.  C;  Strithorst  v.  Graeme,  3  Wils.  145;  Williams  v.  Jones,  13  East,  439. 

(e)  See  Cornill  v.  Hudson,  27  L.  J.  (Q.  B.)  8 ;  8  E.  &  B.  (92  E.  C.  L.  R.) 
429. 

(/)  Cornill f.  Hudson,  supra;  Pardo  v.  Bingham,  L.  R.  4  Ch.  735,  39  L.  J. 
(Ch.)  170. 

{g)  Sect.  4. 

519 


516  LIMITATION.  [lECT.  X. 

his  return,  not  by  the  statute  of  James,  but  by  stat.  4 
Anne,  c.  16,  s.  19  (A) ;  but  it  is  a  singular  thing  that 
"  beyond  seas  "  does  not  mean  the  same  thing  in  this 
Act  of  Parliament  as  in  the  Acts  of  James  and  William 
IV. ;  for  by  8  &  4  Will.  lY.,  c.  42,  s.  7,  it  is  directed 
that  no  part  of  the  United  Kingdom,  or  of  Guernsey, 
Jersey,  Alderney,  Sark,  or  Man,  shall  be  considered  be- 
yond seas,  within  the  meaning  of  that  Act  or  of  the 
Act  of  James  I.;  but,  as  the  statute  of  Anne  is  not 
mentioned,  it  is  held  that  the  words  "  beyond  seas " 
used  in  that  Act  retain  their  Common  Law  meaning, 
which  was  literally  beyond  the  sea  surrounding  Great 
Britain.  The  Court  of  Exchequer,  therefore,  decided 
in  Lane  v.  Bennett  (i),  that  Ireland  is  not  within  the 
statute  of  Anne,  and  that  the  j)laintiif  had  still  six 
years  in  which  to  bring  his  action  after  the  return  of 
the  defendant,  who  had  been  in  that  part  of  the  United 
Kingdom  ever  since  the  cause  of  action  accrued.  But 
this  condition  of  the  statute  law,  although  well  worth 
observing,  does  not  now  exist,  the  Legislature  having 
r-^^^  _-|  enacted  in  the  statute  "^19  &  20  Vict.,  c.  97,  s. 
12,  that  these  places  shall  be  within  the  statute 
of  Anne  in  like  manner  as  they  are  within  the  3  &  4 
Will.  IV.,  c.  42,  s.  7.  Such  are  the  points  of  time  from 
which  Statutes  of  Limitation  begin  to  run  ;  and  it  must 
be  remembered  that  in  every  case  of  a  Statute  of  Limita- 
tions, if  once  the  time  of  limitation  begins  to  run,  noth- 
ing that  happens  afterwards  will  stop  it  {k). 


(h)  Fannin  v.  Anderson,  7  Q.  B.  (53  E.  C.  L.  E.)  811 ;  Townes  v.  Mead,  24 
L.  J.  (C.  P.)  89;  16  C.  B.  (81  E.  C.  L.  R.)  123. 

(i)  1  M.  &  W.  70.     See  Battersby  t^.  Kirk,  2  Bing.  N.  C.  (29  E.  C.  L.  E.) 
584. 

(k)  Smith  V.  Hill,  1  Wils.  134 ;  Ehodes  v.  Smethurst,  6  M.  &  W.  351 ;  Cur- 
lewis  V.  Earl  of  Mornington,  26  L.  J.  (Q.  B.)  181 ;  7  E.  &  B.  (90  E.  C.  L.  E.) 
283  ;  Sturgis  v.  Darell,  4  H.  &  N.  622  ;  6  Ibt  120  (Exch.  Ch.) ;  28  L.  J.  (Ex.) 
366;  29  lb.  472. 
520 


LECT.  X.]  LIMITATION.  517 

There  was,  moreover,  a  very  important  distinction 
between  co-plaintiffs  and  co  defendants.  It  is  clear  that 
a  sole  plaintiff  might,  if  he  chose,  bring  his  action 
while  abroad  or  wait  till  his  return,  when  the  statute  be- 
gan to  run  {I)  ;  and  co-plaintiffs,  if  some  were  abroad 
and  others  in  England,  must  have  sued  within  six 
years  from  the  cause  of  action  accruing  (m)  :  but  where 
one  of  two  co-contractors  who  was  a  defendant,  was  be- 
yond seas,  the  statute  did  not  run  till  his  return  in  the 
case  of  either  of  them;  for  it  was  decided  {n),  that  al- 
though the  statute  commences  to  run  when  the  right  of 
action  accrues,  where  there  are  several  joint  claimants, 

and  one  of  them  is  within  seas,  yet  *where  there    ^.  ^  ^^ 

1^5181 
were  joint  debtors,  and  one  of  them  was  abroad    '-         -^ 

when  the  cause  of  action  arose,  tlie  statute  did  not  begin 
to  run  until  his  return  in  the  case  of  any  of  them. 
This  distinction  between  the  position  of  co-plaintiffs  and 
co-defendants  was  founded  upon  the  wording  of  the 
19th  section  of  the  statute  of  Anne,  c.  16,  compared 
with  the  21  Jac.  I.,  c.  16 ;  and  the  reason  of  it  seems  to 
be,  that  one  plaintiff  could  act  for  others  and  use  their 
names  in  an  action,  and  therefore  the  protection  of  the 
statute  was  not  wanted.  With  respect  to  defendants, 
however,  the  reason  did  not  apply ;  the  plaintiff  might 
not  be  able  to  bring  the  absent  defendant  into  Court  by 
any  act  of  his,  and  therefore,  if  he  were  compelled  to  sue 
those  who  were  within  seas  without  joining  those  who 
were  abroad,  he  might  possibly  recover  against  insolvent 
persons,  and  lose  his  remedy  against  the  solvent  ones 
who  were  absent.  On  the  other  hand,  if  he  sued  out  a 
writ  against  all,  and  either  continued  it  without  declar- 
er) Le  Veux  v.  Berkeley,  5  Q.  B.  (48  E.  C.  L.  E.)  836. 
(m)  2  Wms.  Saund.  121.  See  Perry  v.  Jackson,  4  T.  K.  516 ;  Strithorst  p. 
Graeme,  3  Wils.  145. 

(n)  Fannin  v.  Anderson,  supra. 

621 


518  LIMITATION.  [lECT.  X. 

ing,  or  2')roceeded  to  outlawry  against  the  absent  parties, 
and  declared  against  those  within  seas,  he  was  placed  in 
precisely  the  same  situation  as  if  the  statute  of  Anne 
had  never  passed,  and  was  obliged  to  incur  fruitless  ex- 
pense, the  avoiding  of  which  seems  to  have  been  the 
object  of  the  statute  of  Anne.  But  this  evil  is  remedied 
by  the  statute  so  often  cited,  and  now  the  Statutes  of 
Limitations  before  mentioned  (including  3  &■  4  Will. 
IV.,  c.  42,  s.  3)  run  as  to  the  joint  debtor  *who 
'-  '  -■  is  not  beyond  seas,  from  the  time  when  the  ac- 
tion or  suit  accrued ;  but  there  is  no  bar  from  com- 
mencing an  action,  &c.,  against  a  joint  debtor  who  was 
beyond  seas,  after  his  return,  by  reason  of  judgment 
having  been  recovered  against  another  who  was  not  be- 
yond seas  (o). 

It  seems  also  that  if,  after  the  Statute  of  Limitations 
has  begun  to  run,  the  right  to  sue  and  the  liability  to 
be  sued,  meet  in  the  same  person  by  any  act  of  the  law, 
as  where  a  debtor  to  the  deceased  becomes  his  adminis- 
trator, the  running  of  the  statutes  is  suspended  while 
they  so  continue  (p). 

In  the  fourth  place,  if  the  defendant  have  given  an 
acknowledgment  by  writing  signed,  the  protection  of 
the  statute  is  removed.  After  the  passing  of  the  statute 
of  James,  and  until  Lord  Tenterden's  Act,  which  I  shall 
immediately  mention,  an  acknowledgment  by  mere 
words  would  have  been  sufficient ;  but  by  sect.  1  of  that 
Act,  w^iich  is  the  9  Geo.  IV.,  c.  14,  the  acknowledgment 
must  be  in  wi^itiiig,  "  signed  by  the  party  chargeable." 
It  enacts  "  that  no  acknowledgment  or  promise  by  words 
only  shall  be  deemed  sufficient  evidence  of  a  new  or 
continuing  contract,  whereby  to  take  any  case  out  of 

(o)  19  &  20  Vict.,  c.  97,  s.  11  ;  King  v.  Hoare,  13  M.  &  W.  494. 
(p)  Seagram  v.  Knight,  36  L.  J.  (Ch.)  918 ;  L.  K.  2  Ch.  628;  Mills  r.  Borth- 
wick,  35  L.  J.  (Ch.)  31. 
522 


LECT.  X.]  LIMITATION.  520 

*the  operation  of  the  said  enactments  {q),  or  p.-^^^-, 
either  of  them,  or  to  deprive  any  party  of  the  L  -  J 
benefit  thereof,  unless  such  acknowledgment  or  promise 
ehall  be  made  or  contained  by  or  in  some  writing  to  be 
signed  by  the  party  chargeable  tliereby  ;  and  that  where 
there  shall  be  two  or  more  joint  contractors,  or  execu- 
tors, or  administrators  of  any  contractor,  no  such  joint 
contractor,  executor,  or  administrator  shall  lose  the 
benefit  of  the  said  enactments  {q),  or  either  of  them,  so 
as  to  be  chargeable  in  respect  or  by  reason  only  of  any 
written  acknowledgment  or  promise  made  and  signed  by 
any  other  or  others  of  them;  provided  always,  that 
nothing  herein  contained  shall  alter,  or  take  away,  or 
lessen  the  effect  of  any  payment  of  any  principal  or  in- 
terest made  by  any  person  whatsoever ;  provided  also, 
that  in  actions  to  be  commenced  ao;ainst  two  or  more 
joint  contractors,  or  executors,  or  administrators,  if  it 
shall  appear  at  the  trial  or  otherwise  that  the  plaintift* 
though  barred  by  either  of  the  said  recited  Acts  or  this 
Act,  as  to  one  or  more  of  such  joint  contractors,  or  ex- 
ecutors, or  administrators,  shall  nevertheless  be  entitled 
to  recover  against  any  other  or  others  of  the  defendants 
by  virtue  of  a  new  acknowledgment,  or  promise,  or 
otherwise,  judgment  may  be  given  and  costs  allowed  for 

the  plaintiff,  as  to  such  ^defendant  or  defend-    ^.    ^^^ 

•  P'5211 

ants  against  whom  he  shall  recover,  and  for  the    •-        -^ 

other  defendant  or  defendants  against  the  plaintiff." 

No  part  of  Lord  Tenterden's  Act  has  given  rise  to 
more  litigation  than  this  saving  clause ;  but  it  is  now 
settled  that  the  acknowledgment,  in  order  to  bar  the 
Statute  of  Limitations,  must,  except  in  the  case  after- 
wards mentioned  of  a  conditional  promise  which  has 
become  absolute  by  the  performance  of  the  condition, 

(7)  I.  e.     21  Jac.  1,  c.  16,  the  English  Statute  of  Limitations,  and  10  Car. 
I,  sess.  2,  c.  6,  a  similar  enactment  for  Ireland. 

523 


521  LIMITATION.  [lECT.  X. 

contain  an  unconditional  promise  to  pay.  Such  prom- 
ise need  not  indeed  be  express,  but  the  law  will 
imply  it  from  an  acknowledgment  of  the  debt,  pro- 
vided it  be  an  acknowledgment  or  admission  so  dis- 
tinct that  a  promise  to  pay  may  be  reasonably  inferred 
from  it  (r). 

v^^Koo-\  Many  of  the  older  cases  display  a  different 
doctrine  (s).  *These,  however,  are  expressly 
overruled  by  the  leading  case  of  Tanner  v.  Smart  {t), 
where,  in  an  elaborate  judgment.  Lord  Tenterden,  C.  J., 
says,  "  The  only  principle  upon  which  it  (an  acknowledg- 
ment) can  be  held  to  be  an  answer  to  the  statute  is  this, 
that  an  acknowledgment  is  evidence  of  a  new  promise, 
and  as  such  constitutes  a  new  cause  of  action,  and  sup- 
ports and  establishes  the  promise  which  the  declaration 
states.  Upon  this  principle,  whenever  the  acknowledg- 
ment supports  any  of  the  promises  in  the  declaration, 
the  plaintiff  succeeds ;  when  it  does  not  support  them, 
though  it  may  shoiv  clearly  that  the  debt  has  never 
been  paid,  but  is  still  a  subsisting  debt,  the  plaintiff 
fails."  This  decision  was  based  chiefly  on  that  of 
Heyling  v.  Hastings  (u),  one  of  the  oldest  cases  on 
the  Statute  of  Limitations,  and   has   been   recognized 

(r)  Collis  V.  Stack,  26  L.  J.  (Ex.)  138;  1  H.  &  N.  605  ;  Holmes  v.  Mack- 
ivll,  3  C.  B.  (N.  S.)  (91  E.  C.  L.  R.)  789 ;  Godwin  v.  Culley,  4  H.  &  N.  373 ; 
Holmes  ?•.  Smith,  8  Ir.  (Com.  Law  Kep.)  424 ;  Cornforth  v.  Smithard,  29  L.  J. 
(Ex.)  228  ;  Bourdin  v.  Greenwood,  L.  R.  13  Eq.  281  ;  41  L.  J.  (Ch.)  73.  "It 
has  been  established  by  Tanner  v.  Smart,  and  similar  cases,  that  a  mere  ac- 
knowledgment will  be  insuflicient,  if  the  debtor  states  either  that  he  will  not  paj', 
or  that  he  will  pay  only  upon  a  condition  which  remains  unfulfilled,  or  at  a  time 
which  has  not  elapsed.  Beyond  establishing  this  principle,  I  do  not  think  that 
much  assistance  is  to  be  obtained  from  a  perusal  of  the  cases,  for  one  care- 
lessly written  letter  is  notof  much  use  in  construing  another."  Ver  Bramwell.  L.  J., 
in  Meyerhof  v.  Froehlich,  4  C.  P.  D.  (C.  A.)  63,  65  ;  48  L.  J.  (Q.  B.  etc.,)  43, 45. 

(s)  Yea  V.  Fouraker,  2  Burr.  1099 ;  Thornton  v.  Illingworth,  2  B.  &  0.  (9 
E.  C.  L.  R.)  824. 

(<j  6  B.  &  C.  (13  E.  C  L.  R.)  603;  Turney  v.  Dodwell,  23  L.  J.  (Q.  B.)  137; 
3  E.  &  B.  (77  E.  C.  L.  R.)  136,  5.  C. 

(«)  Comyn,  54;  Salk.  29,  S.  C. 
524 


LECT.  X.]  LIMITATION.  522 

and    cited   in    almost   every   subsequent    case    on    the 
point  {x). 

As  long  as  the  doctrine  prevailed,  that  it  sufficed  to 
show  an  acknowledgment  which  rebutted  the  presump- 
tion arising  from  the  lapse  of  time  that  the  r*r;.;o-| 
*claim  was  satisfied,  it  was  not  only  immaterial 
whether  a  promise  were  made  or  not,  but  a  condition 
with  which  such  promise,  if  made,  might  chance  to  be 
coupled,  would  nowise  have  defeated  the  effect  and 
virtue  of  the  acknowledgment :  for  the  acknowledgment 
was  held  to  be  in  itself  a  bar  to  the  statute,  and  no 
promise,  either  express  or  implied,  was  required.  In 
Dowthwaite  v.  Tibbut  (?/),  the  debtor  said,  he  "would 
not,"  and  in  Leaper  v.  Tatton  (z),  he  "could  not''  pay; 
and  yet  in  both  they  were  held  to  have  sufficiently 
admitted  the  debt.  But  according  to  the  doctrine  now 
adopted  from  Tanner  v.  Smart,  any  conditional  promise 
defeats  the  acknowledgment  (unless,  indeed,  the  condi- 
tion be  shown  to  have  been  performed) :  so  that,  how- 
ever strongly  the  debt  may  be  admitted,  unless  there  be 
a  promise  to  pay  it,  express  or  implied,  it  cannot  be 
enforced.  Lord  Tenterden  said,  in  Tanner  v.  Smart, 
"Upon  a  general  acknowledgment,  where  nothing  is 
said  to  prevent  it,  a  promise  to  pay  may  and  ought  to 
be  implied ;  but  where  the  party  guards  his  acknowl- 
edgment, and  accompanies  it  with  an  express  declaration 
to  prevent  any  such  implication,  why  shall  not  the  rule 
»'  Expressum  facit  cessare  taciturn '  prevail  ?"  So  rigor- 
ously has  this  been  followed,  that,  in  the  case  of  Hart 
V.  Prendergast  (a),  the  following  ^written  state-  r^co^-i 
ment  was   held  an  insufficient  "  acknowledg- 

(x)  Morrell  v.  Frith,  3  M.  &  W.  402 ;  Bateman  v.  Pinder,  3  Q.  B.  (43  E.  C. 
L.  R.)  574 ;  Hurst  v.  Parker,  1  B.  &  Aid.  92 ;  Cripps  v.  Davis,  12  M.  &  W. 
159;  Hart  v.  Prendergast,  15  L.  J.  (Ex.)  223;  14  M.  &  W.  741,  S.  C;  Wil- 
liams V.  Griffith,  3  Ex.  335. 

(y)  5  M.  &  Sel.  75.  {z)  16  East,  420.  (a)  Swpra. 

525 


524  LIMITATION.  [lECT.  X. 

ment  or  promise "  to  satisfy  the  statute :  "  I  will  not 
fail  to  meet  Mr.  H.  (the  plaintiff)  on  fair  terms,  and 
have  now  a  hope  that  before,  perhaps,  a  W'Cek  Irom  this 
date  I  shall  have  it  in  my  power  to  pay  him,  at  all 
events,  a  portion  of  the  debt,  when  we  shall  settle  about 
the  liquidation  of  the  balance."  Pollock,  C.  B.,  there 
says,  "  It  is  not  sufficient  that  the  document  contains  a 
promise  by  the  defendant  to  pay  when  he  is  able,  or  by 
bill,  or  a  mere  expectation  that  he  shall  pay  at  some 
future  time;  it  should  contain  either  an  unqualified 
promise  to  pay,  that  is,  a  promise  to  pay  on  request,  or 
if  it  be  a  conditional  promise,  or  a  promise  to  pay  on 
the  arrival  of  a  certain  period,  the  performance  of  the 
condition  or  the  arrival  of  that  period  should  be  proved 
by  the  plaintiff.  The  only  question  in  the  present  case 
is,  whether  this  letter  containr.  a  promise  to  pay  the 
debt  on  request.  Now,  certainly,  it  does  not  in  terms 
contain  such  a  promise"  {b).  On  the  other  hand,  a 
letter  containing  these  words,  "  I  will  try  to  pay  you  a 
little  at  a  time  if  you  w^ill  let  me.  I  am  sure  that  I  am 
r^roK-i  anxious  to  get  out  of  your  debt.  I  '''will  en- 
deavour to  send  you  a  little  next  week  :"  has 
been  held  sufficient,  as  an  unequivocal  acknowledgment, 
not  limited  by  a  refusal  or  any  other  qualifying  state- 
ment (c). 

This  doctrine  as  to  conditional  ability  has  been  car- 
ried further,  on   the  authority  of  Tanner  v.  Smart,  in 

(6)  See  also  Spong  v.  Wright,  9  M.  &  W.  629  ;  Morrell  j;.  Frith,  supra;  and 
Cripps  V.  Davis,  12  M.  &  W.  159 ;  Bush  v.  Martin,  33  L.  J.  (Ex.)  17  ;  Ck)ck- 
erill  V.  Sparke,  32  L.  J.  (Ex.  118 ;  Banner  v.  Berridge,  18  Ch.  Div.  254;  50  L. 
J.  (Ch.)  630 ;  Green  v.  Humphreys,  26  Ch.  Div.  474 ;  53  L.  J.  (Ch.)  625  ;  re- 
versing S.  a,  23  Ch.  Div.  207  ;  52  L.  J.  (Ch.)  659. 

(c)  Lee  V.  Wilmot,  L.  R.  1  Ex.  364 ;  35  L.  J.  (Ex.)  175.  See  also  Chasemore 
V.  Turner,  L.  R.  10  Q.  B.  500,  45  L.  J.  (Q.  B.,  etc.)  60 ;  Quincey  v.  Sharpe,  1 
Ex.  D.  72,  45  L.  J.  (Q.  B.,  etc.)  347 ;  Skeet  r.  Lindsay,  2  Ex.  D.  314,  46  L.  J. 
(Q.  B.,  etc.)  249. 
526 


LECT.  X.]  LIMITATION.  525 

the  case  of  Waters  v.  Earl  of  Thanet  {d),  where  tlie 
defendant  gave  an  acknowledgment  of  certain  overdue 
bills  of  exchange  in  a  memorandum  thus  worded :  "  I 
hereby  debar  myself  of  all  future  plea  of  the  Statute  of 
Limitations  in  case  of  my  being  sued  for  the  recovery 
of  the  amounts  of  the  said  bills  and  of  the  interest 
accruing  thereon  at  the  time  of  my  being  so  sued  ;  and 
I  hereby  promise  to  pay  them,  separately  or  conjointly, 
with  the  full  amount  of  legal  interest  on  each  or  both 
of  them,  whenever  my  circumstances  may  enable  me  to 
do  so,  and  I  may  be  called  upon  for  that  purpose.' 
Now  in  this  case  the  defendant  had  become  able  to  pay 
the  bills  above  six  years  before  the  action  was  brought ; 
but  the  plaintiff  was  ignorant  of  it.  But  it  was  decided, 
that  when  a  debtor  protected  by  the  statute  promises  to 
pay  whenever  he  may  be  able,  the  creditor  is  expected 
to  be  on  the  watch,  and  when  he  brings  his  action 
*must  prove  the  ability  which  revives  his  right.  ri^^oa-\ 
The  period  at  which  it  is  revived  is  that  of  the 
fact  taking  place,  not  of  his  becoming  acquainted  with  it. 
These  decisions  have  been  thought  unsupported  by 
the  case  of  Heyling  v.  Hastings,  from  which  that  of 
Tanner  v.  Smart  derived  its  authority,  and  even  at 
variance  with  it:  the  words  there  used  by  the  debtor 
were,  "  Prove  it,  and  I  will  pay  you :"  and  it  was  held, 
that  "  the  promise,  though  conditional,  shall  bring  it 
back  within  the  statute,  for  the  defendant  waives  the 
benefit  of  the  Act  as  much  as  by  a7i  express  promise;''^ 
and  Holt,  C.  J.,  having  reserved  the  point,  ten  judges 
conferred  and  approved  of  the  judgment ;  adding,  that 
if  the  creditor  proved  the  delivery  of  the  goods,  which 
he  might  do  at  the  trial,  it  would  suffice  to  take  the 
case  out  of  the  statute  (e).     The  law,  however,  seems 

(d)  2  Q.  B.  (42  E.  C.  L.  E.)  757. 

(c)  1  Ld.  Kaym.  398,  and  421;  Salk.  29,  S.  C. 

527 


526  LIMITATION.  [LECT.  X. 

settled  (/) :  and  in  a  more  recent  case  it  wns  lield  that 
although  a  simple  acknowledgment  of  the  debt,  without 
any  qualification,  may  be  sufficient  to  bar  the  Statute 
of  Limitations,  because  the  law  will  infer  a  promise 
to  pay  the  debt ;  yet  if  there  be  anything  to  qualify  the 
r*f^97T  acknowledgment  or  make  it  doubtfid  it  is  not 
^  "'  -i  ^sufficient.  Therefore,  where  there  was  merely 
a  proposal  that  if  so  much  was  allowed  on  one  side  so 
much  should  be  allowed  on  the  other,  and,  independently 
of  such  condition,  there  was  no  acknowledgment  of  the 
debt,  it  was  considered  to  be  no  bar  to  the  statute  (g). 
Similarly  it  would  seem,  though  it  is  not,  it  is  believed, 
expressly  decided,  "  that  a  letter,"  to  quote  the  words 
of  Mellish,  L.  J.  (Ji),  "which  is  stated  to  be  without 
prejudice  cannot  be  relied  upon  to  take  a  case  out  of 
the  Statute  of  Limitations,  for  it  cannot  do  so  unless  it 
can  be  relied  ujDon  as  a  new  contract.  Now  if  a  man 
says  his  letter  is  without  prejudice,  that  is  tantamount 
to  saying  '  I  make  you  an  offer  which  you  may  accept 
or  not,  as  you  like  ;  but  if  you  do  not  accept  it,  the 
having  made  it  is  to  have  no  effect  at  all.'  It  appears 
to  me,  not  on  the  grounds  of  bad  faith,  but  on  the  con- 
struction of  the  document,  that  when  a  man  says  in  his 
letter  it  is  to  be  without  prejudice,  he  cannot  be  held  to 
have  entered  into  any  contract  by  it  if  the  offer  con- 
tained in  it  is  not  accepted."^ 

(/)  Smith  V.  Thorne,  21  L.  J.  (Q.  B.)  199 ;  18  Q.  B.  (83  E.  C.  L.  E.  )  134, 
Ex.  Ch. ;  Eackham  v.  Marriott,  26  L.  J.  (Ex.)  315 ;  2  H.  &  N.  196  (Ex.  Ch.) ; 
Hughes  V.  Paramore,  24  L.  J.  (Ch.)  681 ;  Everett  v.  Eobertson,  28  L.J.  (Q.  B.) 
23. 

(gr)  Francis  v.  Hawkesley,  28  L.  J.  (Q,  B.)  370;  Goate  v.  Goate,  1  H.  «&  N. 
29  ;  Buckmaster  V.  Eussell,  10  C.  B.  (N.  S.)  (100  E.  C  L.  E.)  745. 

(A)  In  re  Eiver  Steamer  Co.,  Mitchell's  claim,  L  E.  6  Ch.  831. 


'  Bell  V.  Morrison,  1  Peters,  351 ;  Barlow  v.  Barnes,  1  Dillon,  418  ;  Craw- 
ford V.  Childress,  1  Ala.  N.  S.  482 ;  Worthington  v.  De  Bardlekin,  33  Ark.  651 ; 
Walker  v.  Griggs,  32  Ga   119;  Sumner  v.  Sumner,  1  Mete.  394;  Eichardson 

528 


LECT.  X.]  LIMITATION".  527 

If  the  evidence  be  of  a  promise  to  pay  on  condition, 
and  the  condition  be  performed,  it  becomes  absolute, 
and  is  a  j^romise  to  pay  on  request.  For  instance, 
where  the  acknowledgment  was,  "I  am  '-'in  re-  r-.i^ixofn 
ceipt  of  your  letter  of  the  ()th,  handed  me 
this  morning.  I  have  forwarded  it  to  Mrs.  J.,  with  a 
request  she  will  come  over  without  dehiy  to  settle  the 
business.  May  I  beg  you  will  write  to  her  by  the  first 
j)Ost  to  press  payment,  and  what  she  may  be  short  I  will 
assist  to  make  up.  I  send  you  her  address."  This  was 
held  sufficient,  it  having  been  proved  on  behalf  of  the 
plaintiff  that  Mrs.  J.  had  been  applied  to  on  his  part  for 
payment,  but  without  effect  (i).^ 

In  short,  where  Lord  Tenterden's  Act  is  satisfied  by 
a  writing  duly  signed,  "  there  must  be  one  of  these 
three  things  to  take  the  case  out  of  the  Statute  [of 
Limitations].  Either  there  must  be  an  acknowledg- 
ment of  the  debt,  from  which  a  promise  to  pay  is  to  be 
implied ;  or,  secondly,  there  must  be  an  unconditional 
promise  to  pay  the  debt,  or,  thirdly,  there  must  be  a 
conditional  promise  to  pay  the  debt,  and  evidence  that 
the  condition  has  been  performed"  (k). 

It  has  been  also  held,  that  an  acknowledgment  may 
prima  facie  satisfy  the  statute,  but  that  other  evidence 

is  admissible  to  rebut  such  inference :  such,  for    ^ 

•  r  5291 

example,  as  shows  that  a  document  was  'Mrawn    L     -'  J 

(i)  Humphreys  v.  Jones,  14  M.  &  W.  3,  per  Parke,  B. 

(k)  In  re  River  Steamer  Co.,  supra,  per  Mellish,  L.  J.,  at  p.  828.  See  also,  as 
to  the  duty  of  the  plaintiff  to  show  that  the  condition  has  been  performed,  per 
Pollock,  C.  B.,  in  Hart  v.  Prendergast,  14  M.  &  W.  741,  745,  ante,  p.  *o24. 


V.  Thomas,  13  Gray,  381 ;  Ten  Eyck  v.  Wing,  1  Mich.  74;  McDonald  v.  Grey, 
29  Tex.  80. 

^  Leigh  V.  Linthicum,  30  Tex.  100 ;  Aldrete  v.  Demitt's  Heirs,  32  lb.  575 ; 
Lafarge  v.  Jayne,  5  Pa.  St.  410;  Mattocks  v.  Chadwick,  71  Me.  313;  Tompkins 
t;.  Brown,  1  Den.  247. 

34  629 


529  LIMITATION.  [lECT.  X. 

up  with  a  view  to  the  debt  being  paid  in  a  particular 
way  (I). 

It  is  not  necessary  that  the  sum  due  should  be  named  : 
but  if  there  is  an  unequivocal  admission  of  the  debt,  and 
a  difference  only  upon  the  amount,  the  operation  of  the 
statute  is  barred  (m). 

Whether  an  acknowledgment  is  a  sufficient  admission 
or  not  to  take  a  case  out  of  the  statute,  being  substan- 
tially a  question  of  the  construction  of  a  written  docu- 
ment, is  for  the  judge  and  not  the  jury  {71). 

The  promise  or  acknowledgment  must,  in  all  cases,  be 
made  before  action  is  brought ;  it  is  unavailable  if  made 
afterwards  (0). 

As  observed  before  (p),  the  Court  of  Common  Pleas 
decided  in  Hyde  v.  Johnson  (q)  that,  there  being  no 
mention  of  an  agent,  a  signature  by  an  agent  was  not 
sufficient  for  the  purpose,  so  that  it  is  curious  enough 
to  observe,  that  while  under  this  Act  a  man's  agent 
could  not  bind  him  by  the  acknowledgment  of  a  simple 
contract  debt,  yet  under  3  &  4  Wm.  IV.,  c.  24,  s.  5  (r), 
the  agent  may  do  so  by  acknowledging  a  bond  debt 
P^'^O"!  ^^^^^^^  ^^  ^  contract  *of  so  much  more  import- 
ance in  the  eye  of  the  law.  But  this  anomaly 
has  been  removed,  and  the  signature  of  an  agent,  both 
within  this  statute  and  the  16  &  17  Vict.,  c.  113  (Irish 
Com.  L.  Procedure  Act),  ss.  24  and  27,  is  now  suffi- 
cient (s). 

(l)  Cripps  V.  Davis,  12  M.  &  W.  159.  See  Collinson  v.  Margesson,  27  L.  J. 
(Ex.)  305. 

(m)  Waller  v.  Lacy,  1  M.  &  Gr.  (39  E.  C.  L,  E.)  54 ;  Gardner  v.  M'Mahon,  3 
Q.  B.  (43  E.  C.  L.  R.)  561. 

(n)  Sidwell  v.  Mason,  26  L.  J.  (Ex.)  407  ;  2  H.  &  N.  306. 

(o)  Bateman  v.  Finder,  3  Q.  B.  (43  E.  C.  L.  R.)  574. 

Ip)  Ante,  pp.  *405,  *406. 

(q)  2  Bing.  N.  C.  (29  E..  C.  L.  R)  776. 

(r)  Ante,  p.  *510. 

(s)  19  &  20  Vict.,  c.  97,  s.  13. 
530 


LECT.  X.]  LIMITATION.  530 

There  is  still  another  and  a  fifth  exception.  This 
arises  from  a  clause  in  Lord  Tenterden's  Act,  which  ex- 
empts from  the  operation  of  that  Act  tlie  effect  of  any 
payment,  whether  of  principal  or  interest.  Before 
Lord  Tenterden's  Act,  a  part  payment,  whether  of 
principal  or  interest,  had  the  effect  of  taking  the  debt 
in  respect  of  which  it  was  paid  out  of  tlie  operation  of 
the  Statute  of  Limitations  [t),  and  therefore  will  have 
the  same  effect  since  (u).  Indeed,  from  the  case  of 
Whitcomb  v.  Whiting  just  cited,  you  will  see  tliat  where 
there  were  several  joint  debtors,  payment  by  one  took 
the  debt  out  of  the  operation  of  the  statute  as  against 
the  others.  But  it  has  been  enacted,  that  for  the 
future  part  payment  by  one  shall  not  deprive  another 
of  the  benefit  of  the  enactments  of  the  Statute  of  Limi- 
tations ix). 

*There  have  been  many  decisions  as  to  what  rvroiT 
IS  a  sumcient  payment  to  bar  the  statute,  of 
which  some  notice  is  expedient.  In  Bateman  v.  Fin- 
der (7/),  Wighlman,  J.,  said,  "Part  joayment  is  an  ac- 
knowledgment, and  an  acknowledgment,  though  not  a 
promise  in  terms,  may  amount  to  one  virtually ;  but, 
Avhere  it  is  not  made  till  after  action  brought,  it  cannot 
prevent  the  operation  of  the  statute."  Part  payment 
by  an  agent  must  therefore  be  by  such  an  agent  as  is 
authorized  to  make  such  payment  by  the  parties  to  be 
bound  by  this  act  of  his ;  and,  therefore,  if  made  by  a 

(0  Whitcomb  v.  Whiting,  Dougl.  652;  Goddard  v.  Ingram,  3  Q.  B.  (43  E. 
CLE.)  839. 

(m)  Wyatt  V.  Hodson,  8  Bing.  (21  E.  C.L.  R.)  309;  Channel  v.  Ditchburn,  5 
M.  &  W.  494 ;  Bamfield  v.  Tiipper,  7  Exch.  27 ;  Fordham  v.  Wallis,  22  L.  J. 
(Chanc.)  548.  And  see  In  re.  Rutherford,  Brown  v.  Rutherford,  14  Ch.  Div. 
687  ;  49  L.  J.  (Ch.)  654,  reversing  lb.  345. 

(x)  19  &  20  Vict.,  c.  97,  s.  14.  Thompson  v.  Waithman,  26  L.  J.  (Ch.)  134 ; 
3  Drew.  628  ;  Jackson  v.  WooUey,  27  L.  J.  (Q.  B.)448  (Ex.  Ch.),  reversing  lb. 
181  ;  Ridd  v.  Moggridge,  2  H.  &  N.  567. 

{y)  3  Q.  B.  (43  E.  C.  L.  R.)  574. 

631 


031  LIMITATION.  [lECT.  X. 

receiver  appointed  by  the  Court  of  Chancery  without 
the  sanction  of  such  parties,  his  payments  do  not 
amount  to  any  acknowledgment  by  them,  and  do  not 
against  them  take  the  case  out  of  the  statute  {z).  And 
this  part  payment  may  be  made  by  a  bill,  as  well  as  by 
money,  for  the  statute  intenditig  to  make  a  distinction 
between  mere  acknowledgments  by  word  of  mouth,  and 
acknowledgments  proved  by  the  act  of  payment,  it  can- 
not be  material  whether  such  payment  be  afterwards 
avoided  by  the  thing  turning  out  to  be  worthless.  The 
intention  and  the  act  by  which  it  is  evinced  remain  the 
same.  The  word  payment  must  be  taken  to  be  used  by 
the  Legislature  in  a  popular  sense  large  enough  to  in- 
r:!:ro9-|  elude  Hhe  species  of  payment  by  a  bill  {a). 
Part  payment  of  interest  equally  suffices  (b). 
But  payment  of  interest  under  compulsion  of  law  is  not 
sufficient  to  take  the  principal  debt  out  of  the  operation 
of  the  Statute  of  Limitations,  for  it  is  not  such  a  pay- 
ment that  a  promise  to  pay  the  principal  can  be  in  fact 
inferred  from  it.  On  this  ground,  where  within  six 
years  before  action  the  plaintiff  had  sued  the  defendants 
for  interest  upon  a  note  made  payable  with  interest,  and 
the  defendants  defended  the  suit,  the  plaintiff  recovered 
judgment  for  the  interest  claimed,  and  the  defendants 
thereupon  paid  the  amount  recovered,  this  payment  was 
held  insufficient (c).  Nor  is  it  essential  that  money  or 
a  bill  should  actually  pass ;  for  the  statement  of  a 
mutual  settlement  of  account  between  the  parties  is 
equivalent  to  a  payment  if  the  party  to  whom  the  debt 
is  owing  agree  that  it  shall  be  paid  by  the  setting  off  of 
the  same  amount,  so  that  the  sum  set  off  is  evidence  of 

(2)  Whitley  v.  Lowe,  2  De  G.  &  J.  704. 

(a)  Turney  v.  Dodwell,  23  L.  J.  (Q.  B.)  137  ;  3  E.  &  B.  (77  E.  C.  L.  E.) 
13H 

(b)  Dowling  v.  Ford,  11  M.  &  W.  329. 

(c)  Morgan  v.  Rowlands,  L.  E.  7  Q.  B.  493 ;  41  L.  J.  (Q.  B.)  187. 

632 


LECT.  X.]  LIMITATION.  532 

payment,  if  the  party  against  whom  it  is  set  off  did  not 
object  to  it  when  his  account  was  settled  {d).  The 
principle  of  this  is,  that  the  going  through  an  account 
with  items  on  both  sides,  and  striking  a  balance,  con- 
verts a  set-off  into  a  payment,  and  is  a  ^trans-  r:!:-oo-| 
action  out  of  which  a  new  consideration  may  be 
said  to  arise  (e).  That  money  also  need  not  actually 
pass,  is  shown  by  the  following  case.  After  a  debt  due 
to  the  plaintiff  from  his  son  had  been  barred  by  the 
statute,  the  plaintiff,  his  son,  and  his  son's  wife,  had  an 
interview  at  which  the  interest  was  calcuhited.  The 
plaintiff's  son  then  put  his  hand  into  his  pocket  as  if 
to  get  out  the  money  to  pay  it.  The  plaintiff  stopped 
him,  and  writing  a  receipt  for  the  interest,  gave  it  to  his 
soil's  wife,  saying  that  he  would  make  her  a  present  of 
the  money.  No  money  actually  passed  between  the 
parties,  but  the  transaction  was  held  to  be  a  sufficient 
payment  to  take  the  debt  out  of  the  Statute  of  Limita- 
tions (/). 

Where  a  specific  sum  of  money  is  due,  as  upon  a 
promissory  note,  the  mere  fact  of  a  payment  of  a 
smaller  sura  by  the  debtor  to  the  creditor  is  some  evi- 
dence of  a  part  payment  to  take  the  case  out  of  the 
Statute  of  Limitations  (g).  The  object  and  effect  of 
such  payments  are  rather  matters  of  evidence  than  of 
law  (h) ;  as  where  a  party,  on  being  applied  to  for 
interest,  paid  a  sovereign,  and  said  he  owed  the  money 
but  would  not  pay  it,  it  was  considered  to  be  a  question 
for  the  jury  to  say  ^whether  he  intended  to  re-  r-^roAi 
fuse  payment,  or  merely  spoke  in  jest  {i).     The 

(d)  Scholey  t;.  Walton,  12  M.  &  W.  510. 

(e)  See  also  At^liby  v.  James,  11  M.  &  W.  542. 

(/)  Maber  v.  Maber,  L.  E.  2  Ex.  153 ;  36  L.  J.  (Ex.)  70. 

(g)  Burn  v.  Boulton,  15  L.  J.  (C   P.)  97  ;  2  C.  B.  (52   E.  C.  L.  E.)  476,  S.  C. 

(h)  Nash  v.  Hodgson  23  L.  J.  (Chanc.)  780. 

(i)  Wainman  v.  Kynman,  1  Exch.  118. 

633 


534  LIMITATION.  [lECT.  X. 

question  will  always  turn  upon  the  distinction  between 
cross  demands  and  set-off  on  the  one  hand,  and  part 
payment  on  the  other,  a  distil. ction  clear  enough  in 
principle,  but  dependent  for  its  application  on  facts  and 
therefore  not  always  applicable  with  ease  {k). 

On  the  construction  of  this  part  of  Lord  Tenterden's 
Act,  the  case  of  Waters  v.  Tompkins  (I)  contains  tiie 
following  important  observations,  with  which  this  ex- 
ception will  be  amply  explained  : — "  On  the  first  peru- 
sal of  the  first  clause  of  Lord  Tenterden's  Act,  it  would 
seem  that  the  proviso  takes  the  case  of  part  payment 
of  principal,  or  payment  of  interest,  out  of  the  operation 
of  the  statute  altogether  ;  and  therefore,  that  these  facis 
would  not  only  have  the  same  effect,  but  might  be  proved 
exactly  in  the  same  way  that  they  would  have  been,  if  the 
Act  had  not  passed ;  and  consequently,  by  the  defend- 
ant's parol  admission,  which  species  of  j)roof  ofa  simple 
fact  is  not  exposed  to  the  same  degree  of  danger  as 
attended  the  admission  of  acknowledgments  of  the  debt 
itself  But  the  Court  of  Exchequer,  in  the  case  of 
Willis  V.  Newham  (m),  decided  that  the  verbal  acknowl- 
edgment of  part  payment  of  a  debt  was  insufficient 
pj._„_-|  *and  they  construed  the  act  as  containing  a 
general  provision,  that,  in  no  case  should  an 
acknowledgment  or  promise  by  words  only  be  sufficient 
to  take  the  case  out  of  the  Statute  of  Limitations, 
whether  such  acknowledgment  were  of  the  existence  of 
the  debt,  or  of  the  fact  of  part  payment ;  and  they  con- 
sidered the  proviso  as  leaving  to  the  fact  of  part  pay- 
ment, if  properly  proved,  that  is,  not  by  an  acknowledg- 
ment only,  the  same  effect  which  it  had  before  the  statute. 

(A-)  Worthington  v.  Grimsditch,  15  L.  J.  (Q.  B.)  52;  7  Q.  B.  (53  E.  C.  L.  R.) 
479,  S.  C. ;  Waugh  v.  Cope,  6  M.  «&  W.  824. 
(Zj  2  Cr.  M.  &  K.  726. 
(m)  3  Y.  &  J.  518. 
534 


LECT.  X.]  LIMITATIOX.  535 

And  this  con.struction  of  the  Act  certainly  extends  the 
remedy,  and  obviates  the  mischief  to  be  guarded 
against,  in  a  greater  degree  than  the  worcis  taken  in 
their  ordinary  sense  would  do.  But  if  part  j)ayment, 
or  payment  of  interest,  is  proved  in  any  legal  mode, 
and  not  by  admission  only,  this  case  is  no  authority 
that  such  proof  is  not  sufficient.  The  Act  of  9  Geo. 
IV.,  as  explained  by  that  case,  does  not  prohibit  or 
qualify  the  ordinary  mode  of  legal  proof  in  any  respect, 
save  that  it  requires  something  more  than  mere  admis- 
sion. The  meaning  of  part  payment  of  the  principal, 
is  not  the  naked  fact  of  joayment  of  a  sum  of  money, 
but  payment  of  a  smaller  on  account  of  a  greater  surriy 
due  from  the  person  making  the  payment  to  him  to 
whom  it  is  made ;  which  part  payment  implies  an  ad- 
mission of  such  greater  sum  being  then  due,  and  a 
promise  to  pay  it :  and  the  reason  why  the  effect  of 
such  a  payment  is  not  lessened  by  the  Act  is,  that  it  is 
not  a  mere  acknowledgment  *by  words,  but  it  r^no/^-i 
is  coupled  with  a  fact.  The  same  observation 
applies  to  the  payment  of  interest.  But  if  the  pay- 
ment of  a  sum  of  money  is  proved  as  a  fact,  and  not 
by  a  mere  admission,  there  is  nothing  which  requires 
the  appropriation  to  a  particular  account  to  be  proved 
by  an  express  declaration  of  the  party  making  it  at  the 
time ;  such  appropriation  may  be  shown  by  any  medium 
of  proof,  and  many  instances  might  be  put  of  full  and 
cogent  proof  of  such  appropriation,  where  nothing  was 
said  at  the  time  by  the  debtor ;  as  for  example,  if  the 
day  before  the  debtor  had  called  and  informed  the 
creditor  that  he  would,  the  day  after,  send  his  clerk 
with  a  specific  sum,  on  account  of  the  larger  debt,  then 
described,  for  which  the  action  was  brought,  and  should 
require  a  receipt  for  it,  and  the  clerk  did  pay  that 
specific  sum,  and  took  the  creditor's  receipt,  expressly 

535 


536  LIMITATION.  [lECT.  X. 

stating  the  account  on  which  it  was  received,  and  de- 
livered it  to  his  employer ;  there  could  be  no  doubt  that 
such  evidence  would  not  only  be  admissible,  but,  if 
distinctly  proved,  at  least  as  satisfactory  as  a  declaration 
accompanying  the  act  of  payment."  After  considering 
attentively  the  reasoning  here  quoted,  the  student  will 
be  prepared  to  hear,  that  by  a  subsequent  case,  in  which 
the  Court  of  Exchequer  Chamber  distinctly  overruled 
Willis  V.  Newham,  it  was  decided  that  as  regards  the 
evidence  of  payment,  an  admission  of  payment  suf- 
P^;-or7n  fices,  ^although  not  in  writing,  but  merely  by 
'-         -'    word  of  mouth  (7^).^ 

The  sixth  exception  to  which  I  have  to  advert  is  that 
arising  out  of  the  exception  in  the  statute  of  James  the 
First,  of  accounts  between  merchant  and  merchant.  I 
advert  to  this  only  for  the  purpose  of  showing  that  this 
exception,  like  several  others,  has  been  abrogated  by  the 

(n)  Cleave  v.  Jones,  20  L.  J.  (Exch.)  238 ;  6  Exch.  673,  S.  C.  in  Exch.  Ch. 


^  Upon  the  effect  of  payment  of  part,  either  principal  or  interest,  see  Arnold 
V.  Downing,  11  Barb.  554 ;  Smith  v.  Simms,  9  Ga.  418  ;  Evans  v.  Smith,  34  Me. 
33;  Jones  v.  Jones,  21  N.  H.  219;  Whipple  v.  Stevens,  22  lb.  219;  Sibley  v. 
Phelps,  6  Cush.  172;  Bell  v.  Crawford,  8  Grat.  110;  Biscoe  v.  Stone,  11  Ark. 
39 ;  Wood  v.  Wylds,  lb.  754  ;  Chambers  v.  Walker,  4  Eich.  548  ;  McCulloiigh 
V.  Henderson,  24  Miss.  92 ;  Anderson  v.  Robertson,  lb.  389  ;  Carroll  v.  Forsyth, 
69  111.  127  ;  Merritt  v.  Day,  38  N.  J.  32  ;  Torrence  v.  Strong,  4  Or.  39  ;  Ander- 
son V.  Baxter,  lb.  105;  English  v.  Wathen,  9  Bush,  387  ;  U.  S.  v.  Wilder,  13 
Wall.  254 ;  Hopkins  v.  Stout,  6  Bush,  375  ;  Egery  v.  Decrew,  53  Me.  392 ; 
Dyer  v.  Walker,  54  lb.  18  ;  Thorn  v.  Moore,  21  Iowa,  285  ;  Eaton  v.  Gillet,  17 
Wis.  435.  A  part  payment  made  on  Sunday  will  not  take  the  debt  out  of  the 
statute :  Clapp  v.  Hale,  112  Mass.  368  An  acknowledgment  or  new  promise 
made  on  Sunday  will  remove  the  bar:  Thomas  v.  Hunter,  29  Md.  40G.  A  par- 
tial payment  on  a  joint  and  several  promissory  note,  by  one  of  several  makers, 
will  not  prevent  the  running  of  the  statute  as  to  the  other  makers :  Hunter  r. 
Robertson,  30  Ga.  479  ;  Hance  v.  Hair,  25  Ohio  St.  349 ;  contra,  Merrill  t-. 
Day,  38  N.  J.  32 ;  Block  v.  Dorman,  51  Mo.  31 ;  Pitts  v.  Hunt,  6  Lans.  146 ; 
Corlies  v.  Fleming,  30  N.  J.  349.  And  see  also  Bogert  v.  Vermilya,  10  Barb. 
32  ;  Ellicott  v  Nichols,  7  Gill,  85  ;  Whipple  v.  Stevens,  22  N.  H.  219;  Balcom 
r.  Richards,  6  Cush.  360;  Reid  v.  McNaughton,  15  Barb.  168;  Tillinghast  v. 
Nourse.  14  Ga.  641.  A  part  payment  derived  from  a  collateral  security  is  no* 
sufficient :  Harper  v.  Fairley,  53  N.  Y.  442. — S. 

536 


LECT.  X.]  LIMITATION.  537 

Statute  19  &  20  Vict.,  c.  97,  s.  9.  And  now  "  all  actions 
of  account  or  for  not  accounting,  and  suits  for  such  ac- 
counts as  concern  the  trade  of  merchandise  between 
merchant  and  merchant,  their  factors  or  servants,  shall 
be  commenced  and  sued  within  six  years  after  the  cause 
of  such  actions  or  suits,  or  when  such  cause  has  already 
arisen,  then  within  six  years  after  the  passing  of  this 
Act ;  and  no  claim  in  respect  of  a  matter  which  arose 
more  than  six  years  before  the  commencement  of  such 
action  or  suit  shall  be  enforceable  by  action  or  suit  by 
reason  only  of  some  other  matter  of  claim  comprised  in 
the  same  account  having  arisen  within  six  years  next 
before  the  commencement  of  such  action  or  suit"  (o). 

Lastly,  if  the  accruer  of  the  cause  of  action  have 
been  fraudulently  concealed  by  the  person  liable,  it  seems 
now  that  in  most  cases  the  statute  will  not  begin  to  run 
till  the  discovery  of  the  fraud.  *This  was  not  p,:._qqt 
the  doctrine  of  the  Common  Law  as  laid  down  ^  -• 
in  the  most  recent  cases ;  for  there  it  was  held  that  the 
accruing  of  the  cause  of  action  being  the  point  from 
which  the  time  begins  to  run  within  which  an  action 
may  be  brouglit,  even  the  concealment  of  the  accruing 
of  the  cause  of  action  did  not  prevent  this  time  from 
beginning  to  run  from  the  same  point,  and  that  even 
the  fraudulent  concealment  of  the  fact  would  not  pre- 
vent the  period  of  limitation  from  elapsing  (p).  In  the 
Courts  of  Chancery  (§-),  in  most  cases,  this  injustice 
would  have  been  prevented, — a  difference  in  the  ad- 
ministration of  the  law,  arising  from  the  different  modes 

(o)  See  Inglis  v.  Haigh,  8  M.  &  W.'769;  Cottam  v.  Partridge,  4  M.  &  Gr. 
(43  E.  C.  L.  E.)  271 ;  Knox  v.  Gye,  L.  R.  5  H.  L.  656 ;  42  L.  J.  (Ch.)  234 
(H.  L.). 

(p)  Imperial  Gas  Co.  v.  London  Gas  Co.,  23  L.  J.  (Ex.)  303;  10  Ex,  39,  S. 
a    See  Hunter  v.  Gibbons,  26  L.  J.  (Ex.)  1 ;  1  H.  &  N.  459. 

(q)  Blair  v.  Bromley,  5  Hare,  542;  16  L.  J.  (Ch.)  105;  affirmed  on  appeal,  2 
PhU.  354. 

537 


538  CONSTRUCTION.  [lECT.  X. 

of  administering  relief  which  prevailed  in  those  Courts. 
Since  the  Judicature  Acts  came  into  force  the  doctrine 
of  the  latter  Courts  has,  as  might  have  been  expected, 
prevailed  (r).  Accordingly,  a  majority  of  the  Court  of 
Appeal  (affirming  the  judgment  of  Field,  J.,  in  the 
Court  below)  has  recently  held  that  in  an  action  to 
oon  *i'ecover  by  way  of  damages  money  lost  by  the 
L  -^  fraudulent  representations  of  the  defendant,  a 
reply  to  the  defence  of  the  Statute  of  Limitations  that 
the  plaintiff  did  not  discover  and  had  not  reasonable 
means  of  discovering  the  fraud  within  six  years  before 
the  action,  and  that  the  existence  of  such  fraud  was 
fraudulently  concealed  by  the  defendant  until  within 
such  six  years,  was  held  good  (s). 

There  are  a  few  other  rules  applicable  alike  to  every 
species  of  contract,  and  which  it  is  convenient  to  notice 
in  a  work  treating  like  this  of  the  general  princi[)les  of 
the  law  of  contracts.  These  are  the  rules  according  to 
which  contracts  are  construed  in  courts  of  justice,  and 
the  student  will  probably  find  them  deserving  of  much 
interest  wdien  he  observes  that  they  are  not  merely  con- 
ventional rules  of  law,  but  are  the  canons  by  which  all 
writings  of  every  description  are  construed,  and  by 
which  the  meaning  and  intention  of  men  are  ascer- 
tained (/),  when  that  meaning  and  intention  are  indi- 
cated not  by  their  words  or  writings  only,  but  by  their 
actions  and  conduct  also.^ 

(?•)  See  30  &  37  Vict.,  c.  66  (Judicature  Act,  1873),  s.  24,  as  to  the  power  of 
the  nigh  Court  and  Court  of  Appeal  in  all  cases  to  give  equitable  relief  and 
'recognize  equities.  Moreover  by  sect.  25,  sub-s.  11,  of  the  same  Act,  the  gen- 
eral rule  is  that  where  "  there  is  any  conflict  between  the  rules  of  Equity  and 
the  rules  of  Common  Law  with  reference  to  the  same  matter,  the  rules  of 
Equity  shall  prevail." 

(s)  Gibbs  V.  Guild,  9  Q.  B.  D.  (C.  A.)  59;  51  L.  J.  (Q.  B.)  313;  affirming  8 
Q.  B.  D.  290 ;  51  L.  J.  (Q.  B.)  228. 

(0  Doe  d.  Hiscocks  v.  Hiscocks,  5  M.  &  W.  363 ;  ante,  p.  *50. 

*  White  V.  Booker,  4  Mete.  (Ky.)  267 ;  Springinsteen  v.  Samson,  32  N.  Y. 

638 


LECT.  X.]  CONSTEUCTION.  539 

It  is  obviously  of  the  utmost  importance  tliat  these 
rules  of  construction  should  be  applied  with  consistency, 
and  indeed,  as  far  as  practicable,  with  uniformity.  In 
order  to  secure  the  attainment  of  *these  objects,  p^_  .^-| 
the  construction  of  all  written  instruments  be-  ^  -■ 
longs  to  the  Judges,  who  may  reasonably  be  expected 
to  apply  Avith  uniformity  the  rules  w^ith  which  they  are 
by  study  and  experience  familiar,  and  not  to  the  jury, 
whose  habits  of  mind  and  experience  are  necessarily 
different  and  various,  and  who,  in  many  cases  not  being 
familiar  with  the  rules,  and  in  all  cases  practically  un- 
acquiiinted  with  their  application,  cannot  reasonably  be 
expected  to  apply  them  with  uniformity. 

The  construction  of  all  written  instruments,  there- 
fore, belongs  to  the  court  alone  (u),  whose  duty  it  is  to 
construe  all  such  instruments  as  soon  as  the  true  mean- 
ing of  the  words  in  which  they  are  couched,  and  the 
surrounding  circumstances,  if  any,  have  been  ascertained 
as  facts  by  the  jury;  and  it  is  the  duty  of  the  jury  to 
take  the  construction  from  the  court,  either  absolutely, 
if  there  be  no  words  to  be  construed  as  words  of  art  or 
phrases  of  commerce,  and  no  surrounding  circumstances 
to  be  ascertained ;  or  conditionally,  when  those  words  or 
circumstances  are  necessarily  referred  to  them.  Unless 
this  were  so,  there  would  be  no  certainty  in  the  law ; 
for  a  misconstruction  by  the  court  is  the  proper  subject 

(v)  Nielson  v.  Harford,  8  M.  &  W.  823.  See  Smith  v.  Thompson,  8  C.  B. 
(65  E.  C.  L.  R.)  44 ;  Skull  v.  Glenister,  33  L.  J.  (C.  P.)  185. 


703;  Hunter  V.  Anthony,  8  Jones,  385  ;  Eose  t;.  Roberts,  9  Minn.  119;  Kar- 
muller  v.  Krotz,  18  Iowa,  352;  Salmon  Falls  Co.  v.  Portsmouth  Co.,  46  N.  H. 
249  ;  Peckham  v.  Haddock,  36  111.  38 ;  Chicago  v.  Sheldon,  9  Wall.  50  ;  Cald- 
well V.  Lay  ton,  44  .Mo.  220;  People  v.  Gosper,  3  Neb.  285.  When  in  a  con- 
tract words  of  a  doubtful  meaning  or  application  are  used,  the  practical  con- 
struction given  to  them  during  a  series  of  years  by  the  parties  to  the  contract 
should  prevail:  St.  Louis  Gaslight  Co.  v.  St.  Louis,  46  Mo.  121  ;  Eeading  v. 
Gray,  37  N.  Y.  (Super.  Ct )  79 ;  Stapenhorst  v.  Wolff,  35  lb.  25.— s, 

539 


0 10  CONSTRUCTION,  [lECT.  X. 

of  redress  in  a  court  of  appeal ;  but  a  misconstruction 
r*-An  ^^  ^^^  j"^^  cannot  be  set  '''right  at  all  effectu- 
'-  -^  ally.  A  very  good  example  of  what  is  here 
said,  as  well  as  a  clear  statement*  of  the  rules  of  con- 
struction which  the  Judges  apply,  is  furnished  in  the 
ease  of  Simpson  v.  Margitson  (x)  ;  where  the  j)laintiff, 
an  auctioneer,  had  been  employed  to  sell  an  estate  upon 
the  terms  of  a  letter  from  the  defendant  to  him,  which 
contained  these  words : — "  the  terms  upon  wdiich  the 
sale  of  the  North  Cove  estate  is  offered  to  you  are  £1 
per  cent.  uj)on  the  purchase-money ;  that  to  include 
every  expense,  and  to  be  paid  if  sold  by  auction  or 
within  two  months  after ;  half  per  cent,  if  not  sold  at 
auction,  or  within  two  months  after  upon  a  reserved 
price."  The  defendant  contended,  that  month  in  tem- 
poral matters  meant  lunar  month ;  unless  either  from 
the  context  or  from  the  usage  in  a  trade,  business,  or 
place,  it  is  made  to  appear  that  the  parties  intended 
another  meaning ;  and  nothing  of  the  sort  appearing  in 
that  case,  that  it  was  the  duty  of  the  Judge  to  have  con- 
strued the  contract  and  decided  against  the  plaintiff. 
"  If  the  context,"  said  the  Court,  "  shows  that  calendar 
months  were  intended,  the  Judge  may  adopt  that  con- 
struction (y).  If  the  surrounding  circumstances  at  the 
time  when  the  instrument  was  made  show  that  the  par- 
ties intended  to  use  the  word  not  in  its  primary  or  strict 
sense,  but  in  some  secondary  *meaning,  the 
L  ^-'  Judge  may  construe  it  from  such  circumstances 
according  to  the  intention  of  the  parties  {z).  If  there 
is  evidence  that  the  word  was  used  in  a  sense  peculiar 

(x)  11  Q.  B.  (63  E.  C.  L.  R.)  23. 

(y)  Lang  v.  Gale,  1  M.  &  Sel.  Ill ;  Eegina  v,  Chawton,  1  Q.  B.  (41  E.  C.  L. 
■R.)  247. 

(a)  Goldshede  v.  Swan,  1  Ex.  154;  Walker  v.  Hunter,  2  C.  B.  (52  E.  C.  L. 
R.)  324 ;  Bacon's  Maxims,  Reg.  10;  Mallan  v.  May,  13  M.  &  W.  511 ;  B«cki- 
ford  V.  Crutwell,  1  M.  &  K.  187. 

540 


LECT.   X.]  COXSTEUCTIOISr.  542 

to  a  trade,  business,  or  ^^lace,  the  jury  must  say  whether 
the  parties  used  it  in  that  particular  sense  (a).  If  the 
meaning  of  a  word  depends  upon  the  usage  of  the  place 
where  anything  under  the  instrument  is  to  be  done,  evi- 
dence of  such  usage  must  be  left  to  the  jury  {d).  Also, 
the  jury  may  have  to  give  the  meaning  of  some  tech- 
nical words.  But  the  f)resent  is  not  within  either  of 
the  above  principles ;  nor  can  we  find  any  authority  for 
saying  that  the  conduct  of  the  parties  to  a  written  con- 
tract is  alone  admissible  evidence  to  withdraw  the  con- 
struction of  a  word  therein,  of  a  settled  primary  mean- 
ing, from  the  Judge,  and  to  transfer  it  to  the  jury." 

It  would  have  appeared  needless  to  remark  that  the 
same  sense  is  to  be  put  upon  the  words  of  a  contract  in 
an  instrument  under  seal,  as  would  be  put  upon  the 
same  words  in  any  instrument  not  under  seal,  if  the 
question  had  not  actually  been  raised  in  argument;  for 
the  same  intention  *will  be  expressed  by  the  r:!:-4q-j 
same  words  in  a  contract  in  writing  whether 
with  or  without  seal.  Nor  can  it  signify  in  what  court 
the  instrument  is  construed;  for  the  question,  what  is 
the  meaning  of  the  contract,  cannot  be  affected  by  the 
question,  what  is  to  be  the  consequence  of  the  contract, 
or  what  the  remedy  for  the  breach,  or  by  any  other 
matter  in  which  the  practice  of  the  courts  may  differ. 
The  rule  of  construction,  therefore,  must  be  the  same, 
whether  in  a  civil  or  a  criminal  court,  or  whether  in  a 
court  of  law  or  equity. 

In  the  first  place,  it  is  the  most  important  of  all  the 
rules  of  construction,  that  the  whole  of  the  agreement 
is  to  be  considered.     This  is  so  reasonable  and  clear. 


(a)  Smith  v.  Wilson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  728 ;  Grant  v.  Mafldox,  15 
II.  &  W.  737  ;  Myers  v.  Sari,  3  E.  &  E.  306 ;  30  L.  J.  (Q.  B.)  9. 

(6)  Robertson  v.  Jackson,  2  C.  B.  (52  E.  C.  L.  R.)  412;  Bourne  v.  Gatliff,  11 
CI.  &  F.  45.    See  Hitchin  v.  Groom,  5  C.  B.  (57  E.  C.  L.  R.)  515. 

541 


543  coNSTEucTiox.  [lect.  X. 

that  no  explanation  is  required  of  it ;  for  obviously  it 
cannot  be  the  intention  of  the  jDarties  to  an  agreement 
with  stipulations  or  qualifications,  that  some  of  them 
should  be  altogether  disregarded,  and  a  part  of  the 
agreement  magnified  into  an  equality  with  the  whole ; 
but,  on  the  contrary,  such  a  meaning  is  to  be  given  to 
particular  parts  as  will,  without  violence  to  the  words, 
be  consistent  with  all  the  rest,  and  with  the  evident 
object  and  intention  of  the  contracting  parties. 

The  case  of  Monypenny  v.  Monypenny  (c),  decided 
^=^^441  ^y  Lord  Chancellor  Ghelmsford,  contains  ""'one 
of  the  most  luminous  judgments  to  be  found 
in  the  books  on  this  most  important  rule,  and  deserves 
so  much  attention  that  I  have  here  stated  it  at  some 
length.  Phillips  Monypenny  vested  a  term  of  100 
years  in  trustees  for  the  better  security  of  the  payment 
of  a  rent-charge,  being  his  wife's  jointure.  Phillips 
Monypenny  died  in  1841.  After  his  death  it  was  dis- 
covered that  of  the  principal  part  of  the  property 
charged  with  the  annuity,  Phillips  Monypenny  was 
only  tenant  for  life,  and  on  his  deatli  it  became 
another's.  As  the  charge  upon  the  land  of  which  he 
was  such  tenant  ceased,  it  became  material  to  inquire 
whether  there  was  any  covenant  in  the  deed  to  bind 
his  j)ersonal  representatives.  One  of  the  Vice-Chan- 
cellors,  assisted  by  two  of  the  Common  Law  Judges, 
decided  that  there  was  no  such  covenant,  and  the  case 
was  reconsidered,  on  appeal,  by  Lord  Chancellor 
Chelmsford. 

"The  learned  barons,"  said  the  Lord  Chancellor, 
"who  assisted  the  Vice-Chancellor  in  putting  a  legal 
construction  on  the  deed,  were  clearly  of  opinion  that 
there  were  no  words  in  it  creating  a  covenant.     They 

(c)  28  L.  J.  (Ch.)  303;  31  L.  J.  (Ch.)  269;  and  9  H.  L.  C.  114;  M'lntyre 
t).  Belcher,  32  L.  J,  (C.  P.)  254;  14  C.  B.  (N  S.)  (108  E.  C.  L.  E.)  654. 
542 


LECT.  X.]  CONSTRUCTION.  544 

examined  the  recital,  grant,  and  the  jDOwer  of  distress 
in  succession,  and  dismissed  each  of  them  in  its  turn, 
with  the  remark  that  it  did  not  operate  as  a  covenant. 
Even  the  strong  and  appropriate  words  used  in  the 
creation  of  the  power  to  distrain  did  not  shake  their 
opinion  ;  for  as  to  them  they  say,  'Nor  do  we  think  that 
the  "^words  used  in  the  creation  of  the  power  to  pv-nAt^i 
distrain,  extensive  as  they  are, — "  covenants, 
grants,  and  agrees,  that  it  shall  be  lawful  when  the 
rent-charge  is  in  arrear  for  the  grantee  to  distrain  on 
the  premises," — are  an  express  covenant  that  he  shall 
have  power  to  do  so.  We  think  that  "  covenants  and 
agrees "  means  no  more  than  "  grants." '  Then  the 
learned  Judges  proceeded  to  inquire  whether  there  is 
any  implied  covenant  arising  out  of  the  general  words 
used  by  the  grantor,  and  properly  observe,  that  such  a 
covenant  must  be  a  covenant  at  law,  and  that  there  can- 
not be  a  covenant  implied  from  such  words ;  that  the 
covenantor  had  an  equitable  estate;  and  they  conclude 
that  the  deed  contains  neither  an  express  nor  an  im- 
plied covenant,  of  which  the  claimant  can  avail  herself 
to  enforce  the  payment  of  her  jointure  (/.  e.,  the  charge 
on  the  land).  After  the  most  careful  consideration  of 
every  part  of  the  deed,  I  cannot  bring  my  mind  to  a 
similar  conclusion.  In  the  course  of  the  argument  of 
the  counsel  against  the  claim,  I  have  been  earnestly  re- 
quested to  examine  the  whole  scheme  of  the  deed,  in 
order  to  be  enabled  to  put  a  satisfactory  construction 
upon  those  parts  of  it  which  involve  the  question  to  be 
decided.  Undoubtedly,  as  Sheppard  says  (Touchstone, 
87),  in  the  construction  of  all  parts  of  all  kinds  of 
deeds,  amongst  the  rules  to  be  universally  observed  is 
one,  'that  the  construction  be  made  upon  the  entire 
deed,  and  that  one  part  of  it  doth  help  to  *ex-  ra^KAcn 
pound  another,  and  that  every  word  (if  it  may 

543 


546  CONSTEUCTION.  [lECT.  X. 

be)  may  take  effect  and  none  be  rejected.'  Where 
words  are  ambiguous,  or  the  intention  is  not  manifest 
and  plain,  it  is  useful  and  necessary  to  recur  to  other 
parts  of  the  deed  for  interpretation  :  but  this  mode  of 
construction  is  frequently  invoked  for  the  purpose  of 
giving  a  different  meaning  to  words  from  that  wdiich 
they  ordinarily  bear ;  and  on  the  present  occasion  the 
assistance  of  the  whole  scheme  of  the  deed  seems  to  be 
used,  not  that  every  word  may  take  effect,  but  for  the 
purpose  of  weakening  the  ap2:)ropriate  words.  It  is  un- 
necessary, in  my  opinion,  to  resort  to  any  more  of  the 
deed,  except  to  observe  that  the  marriage  consideration 
runs  through  every  part  of  it.  It  was  clearly  to  Pbillips 
Mony2)enny's  interest  that  Mrs.  Monypenny  should 
have  a  rent-charge  out  of  his  estate,  and  he  believed 
himself  to  be  the  absolute  owner  of  it.  The  deed  there- 
fore contains  a  recital  that,  'upon  the  treaty  for  the 
marriage  he  had  agreed  to  secure  to  her  an  annual  sum 
or  rent-charge,  to  be  issuing  and  payable  out  of  the 
manors  and  other  hereditaments  charged  therewith,  and 
of  or  to  which  he  the  said  Phillips  Monypenny  is  enti- 
tled or  seised  in  fee  simple;'  and  in  the  granting  part, 
'  he  gives  and  grants  the  annual  sum  or  rent-charge  to 
be  issuing  out  of  certain  manors  and  lands,  and  gener- 
ally out  of  messuages,  lands,  tenements  and  heredita- 
ments in  the  several  parishes  in  the  county  of  Kent,  of 
or  to  which  he  or  any  person  or  persons  in  trust  for 
r-^p..^-,  '=liim  is  or  are  seised  or  entitled  for  an  estate  of 
inheritance  at  law  or  in  equity.'  It  is  said 
that  the  alternate  words  in  the  recital  and  in  the  'grant' 
express  an  uncertainty  as  to  the  nature  of  the  title  of 
Phillips  Monypenny  to  the  estates  charged :  and  that, 
according  to  the  case  of  Right  d.  Jefferys  v.  Bucknell  {d), 
they  created  no  estoppel  against  Phillips  Monypenny. 

{d)  2  B.  &  Ad.  (22  E.  C.  L.  E.)  278. 

544 


LECT.  X.]  CONSTRUCTION.  547 

But  in  that  case  the  question  related  to  two  houses  only, 
which  were  mortgaged,  and  the  deed  reciting  that  the 
mortgagor  was  legally  or  equitably  entitled  to  the 
premises,  and  he  covenanting  that  he  w'as  legally  or 
equitably  seised  in  his  own  demesne  as  of  fee,  it  was 
clear  that  there  was  no  certain  or  precise  averment  of 
anv  seisin  in  him.  There  the  charge  was  intended  to 
apply  to  various  lands  of  the  grantor ;  and  as  it  is  an 
undoubted  canon  of  construction,  that,  if  possible,  you 
should  give  effect  to  every  part  of  a  deed,  I  find  no 
difficulty  in  considering  the  words  both  in  the  recital 
and  in  the  grant,  not  as  expressive  of  any  uncertainty, 
but  as  applying  to  lands  held  by  different  titles,  and 
therefore,  reddendo  singula  singulis,  to  all  the  lands 
mentioned,  wdiether  Phillips  Monypenny  was  legally 
or  equitably  entitled  to  them.  The  effect  of  this  mode 
of  reading  the  recital  and  the  grant  will  be,  that  the 
annuity  will  be  a  charge  upon  all  the  land,  whether 
Phillips  Monypenny's  title  to  them  was  legal  or 
'"equitable,  although  the  powder  to  distrain  would  r-^^.^-, 
be  limited  to  those  only  of  which  he  had  the  ^  -' 
legal  estate.  The  converse  of  this  is  put  by  Lord  Coke 
in  p.  47  of  his  Commentary,  where  he  says :  '  If  a  man 
seised  of  lands  in  fee,  and  possessed  of  a  terra  for  many 
years,  grant  a  rent  out  of  both  for  life  in  tail  or  in  fee, 
with  clause  of  distress  out  of  both,  this  rent,  being  a 
freehold,  doth  issue  only  out  of  the  freehold,  and  the 
lands  in  lease  are  only  charged  with  the  distress.'  It 
will  be  said  that  the  words  'give,  grant,  bargain,  and 
sell,'  cannot  operate  as  a  covenant,  because  they  merely 
assert  a  power  to  give  or  create  an  annuity ;  at  the 
same  time,  the  plain  and  ordinary  effect  of  the  word 
'  covenant '  has  been  denied,  and  it  has  been  treated  as 
synonymous  with  the  word  *  grant.'  But  in  constru- 
ing this  deed  I  should  be  much  more  disposed  to  give 
35  645 


548  CONSTRUCTION.  [lECT.  X. 

the  word  *  grant '  the  operation  of  a  covenant  than  to 
transform  the  word  '  covenant'  into  a  grant.  It  is  un- 
doubtedly law,  that  a  deed  that  is  intended  and  made 
to  one  purpose  may  accrue  to  another ;  for  if  it  would 
not  take  effect  in  the  way  that  it  was  intended,  it  may 
take  effect  another  way :  Sheppard's  Touchstone,  82. 
There  is  an  admirable  judgment  of  Lord  Chief  Jus- 
tice Willes  on  this  subject  in  Roe  d.  Wilkinson  v.  Tran- 
marr  (e),  which  has  a  considerable  bearing  on  the  point 
in  question.     There   Thomas  Kirby,  in    consideration 

r*^4Q1    *^^'  ^^^^^^1  ^^^^  ^^   ^is   brother  Christopher, 
and    for   £100,   granted,   released,    and    con- 
firmed to  Christopher  the  premises  in  question  after  his 
(Thomas's)  death,  and  covenanted  and  granted  that  the 
premises  should  after  his  death  be  held  by  Christopher 
and  the  heirs  of  his  body,  and  after  their  decease,  to 
John  Wilkinson  and  his  heirs ;  and  it  was  held  that 
the  deed  would  not  operate  as  a  release  because  it  at- 
tempted to  convey  a  freehold  in  future,  but  that  it  was 
good  as  a  covenant  to  stand  seised :  and  the  Chief  Jus- 
tice said,  *  there  is  likewise  one  thing  in  the  present  case 
much  stronger  than  in  any  of  the   cases   which   have 
been  cited  on  the  one  side  or  the  other,  for  here  is  not 
only  the  word  "  grant,"  which  has  often  been  construed 
as  a  word  of  covenant,  but  likewise  the  grantor  ex- 
pressly covenants  in  two  places  in  the  deed,  that  the 
estate  shall  go  to  John  Wilkinson  in  such  a  manner  as 
he  granted  it.'     In  the  present  case,  if  the  words  creat- 
ing the  annual  sum  or  yearly  rent-charge  are  to  be 
construed  strictly  as  a  grant  and  nothing  more,  then  it 
was  absolutely  void  from  the  first  and  never  could  have 
any  inception,  because  it  was  not  to  begin  until  after 
the  death  of  Phillips  Monypenny,  and,  on  his  death, 
the   estate   on  which  it  is  charged  came  to   an   end. 

(e)  Willes,  6S2 ;  2  Smith  L.  C,  8th  ed.,  p.  530. 

546 


LECT.  X.]  CONSTRUCTION.  549 

Why,  under  these  circumstances,  it  being  the  clear 
intention  of  those  parties  that  the  deed  should  operate, 
if  it  could  not  take  effect  as  a  charge,  should  it  not  be 
construed  to  be  a  covenant  to  pay  the  annual  sum  of 
£300,  which  would  be  ^binding  upon  the  exe-  r^-.p^rrri 
cutors  of  Phillips  Monypenny,  though  not 
named  ?  It  is  unnecessary  to  multiply  authorities  to 
show  that,  according  to  what  Lord  Ilansfield  says,  in 
, Lant  V.  Morris  (/),  'no  particular  technical  words  are 
requisite  towards  making  a  covenant,'  for  in  this  deed 
there  is  a  clause  in  which  this  peculiar  and  appropriate 
word  is  to  be  found  in  giving  the  grantor  power  to 
distrain  for  the  rent-charge — *  Phillips  Monypenny,  for 
himself,  his  heirs,  and  assigns,  covenants,  grants,  and 
agrees.'  I  asked  more  than  once  in  the  course  of  the 
argument,  what  would  have  been  the  effect  of  the  deed 
if  it  had  simply  contained  this  clause  of  distress  ?  I 
was  not  aware  my  question  received  an  answer  from 
Littleton  himself;  for  he  says,  in  the  course  of  section 
221 :  'Also,  if  one  make  a  deed  in  this  manner,  that  if 
A.,  of  B.,  be  not  yearly  paid  at  the  feast  of  Christmas, 
for  the  term  of  his  life,  twenty  shillings  of  lawful 
money,  that  then  it  shall  be  lawful  for  the  said  A.,  of  B., 
to  distrain  for  this  in  the  manor  of  F.,  &Q.. :  this  is  a  good 
rent-charge,  because  the  manor  is  charged  with  the  rent 
by  way  of  a  distress.'  But  he  adds —  'And  yet  the  per- 
son of  him  who  makes  such  deed  is  discharged  in  the 
case  of  an  action  of  annuity,  because  he  doth  not  grant 
by  his  deed  any  annuity  to  the  said  A.,  of  B.,  but 
granteth  only  that  he  may  distrain  for  such  annuity.' 
Now  upon  this  put  the  case  that  a  *person  ra^Kr-i-i 
*  covenants,  grants,  and  agrees '  for  a  power  of 
distress  for  an  annual  sum  or  rent- charge  upon  land  in 
which  he  has  nothing.     If  it  is  a  rule  that  every  word 

(J)  1  Burr.  290. 

647 


551  CONSTEUCTIOW.  [lECT.  X. 

in  a  deed  must  have  effect  given  to  it  if  possible,  and 
none  ought  to  be  rejected,  and  there  is  another  rule 
that  if  a  deed  cannot  take  effect  in  the  way  intended,  it 
shall  take  effect  in  another  way, — why  should  not  these 
"words  have  each  its  due  effect,  and  after  tlie  creation  of 
the  rent-charge  by  the  grant  of  the  power  of  distress, 
•why  should  not  the  covenant,  applied  to  the  words 
'annual  sum,'  create  a  personal  liability  in  the  grantor 
and  his  executors?  I  am  aware  that  the  grantor  in 
this  clause  of  distress  binds  only  his  heirs  and  assigns, 
Bud  not  his  executors ;  and  it  was  insisted,  though  not 
very  strongly,  in  argument,  that  this  showed  an  inten- 
tion that  his  executors  should  not  be  bound.  I  in- 
quired whether  there  was  any  authority  to  be  found  that 
executors  in  such  a  case  would  not  be  liable,  and  1  was 
told  that  none  had  been  discovered ;  and  I  should  have 
been  surprised  to  have  learnt  that,  the  rule  being  that 
heirs  are  in  general  only  bound  if  named,  and  that 
executors  are  bound  although  not  named,  the  naming 
the  heirs  for  the  purpose  of  binding  them  should  be 
considered  to  amount  to  an  exclusion  of  the  executors, 
whom  it  was  unnecessary  to  name.  But  had  there  been 
any  such  authority,  I  should  have  thought  it  inapplica- 
ble to  the  present  case,  in  which,  there  being  no  heirs 
r^-^-9']  ^^  ^^  bound,  as  *there  was  nothing  to  descend, 
the  naming  them  could  have  no  greater  effect 
than  if  they  had  been  altogether  omitted  from  the  cove- 
nant. 

"  It  is  not  necessary  for  me  to  consider  the  question 
as  to  whether  a  covenant  could  have  been  implied  from 
the  words  of  the  deed,  if  there  had  been  no  express 
covenant.  I  proceed  on  the  covenant,  which  I  consider 
to  be  expressly  created  by  the  language  of  the  parties. 
I  think  the  appeal  must  be  allowed,  and  the  claim  al- 
lowed also." 
548 


LECT.  X.]  CONSTRUCTION.  552 

This  rule  has  been  so  adtnirably  illustrated  by  another 
very  recent  case,  that  I  have  inserted  the  most  material 
facts  and  arguments  used  in  it,  in  applying  and  limiting 
the  rule.     This  is  the  case  of  Piggot  v.  Stratton,  decided 
by  the  Court  of  Appeal  in  Chancery,  and  is  as  follows : — 
In  1845,  Sir  K.  Simeon  demised  to  William  Stratton 
three  pieces  of  land  marked  A.,  B.,  and  C,  Stratton 
covenanting  not  to  build  on  the  piece  marked  C,  except 
m  a  certain  manner,  which  would  leave  intervals  giving 
a   sea-view  to  houses  built    on  the   piece   marked    B. 
Stratton  granted  an  underlease  of  part  B.  to  one  Har- 
bour, and  by  the  underlease  covenanted  to  observe  his 
own  covenants  in  the  original  lease,  and  effectually  to 
indemnify  the  underlessee,  his  executors,  administrators, 
and  assigns  therefrom.     Harbour  sold  and  assigned  his 
underlease  to    the    plaintiff.     Stratton  afterwards  sur- 
rendered the  original  lease,  obtained  another  not  con- 
taining the  restrictive  covenants,  '='and  proceeded    pjcp-i-q-] 
to  baikl  on  C.  in  a  manner  which  would  exclude 
the  houses  on  B.  from  the  sea-view.     The  Lord  Chan- 
cellor  Campbell,  sitting  in  the  Full  Court  of  Appeal, 
decided  that  the  covenants  in  the  underlease  to  observe 
those  in  the  original  lease,  had  the  same  effect  as  if  they 
had  been  repeated  in  the  underlease,  notwithstanding 
that  the  lease  was  surrendered ;  and  an  injunction  was 
granted  to  prevent  Stratton  from  violating  them  {g). 

"The  first  question,"  said  Lord  Campbell,  " depends 
upon  whether  Stratton  is  to  be  considered,  after  sur- 
rendering to  Sir  Bichard  Simeon  the  lease  of  1845,  as 
under  a  covenant  to  Harbour  not  to  build  houses  on 
the  land  marked  C.  in  that  lease,  so  as  to  obstruct  the 
sea-view  from  houses  built  on  the  land  marked  B.,  and 
depends  entirely  upon  the  construction  of  the  under- 
lease of  1851  from  Stratton  to  Harbour,  regard  being 

ig)  Piggott  V.  Stratton,  29  L.  J.  (Ch.)  1. 

549 


553  CONSTEUCTION.  [lECT.  X. 

liad  to  certain  facts  then  existing.  These  facts  are,  that 
by  the  lease  of  1845  Sir  E.  Simeon  had  demised  for 
999  years  a  part  of  his  estate  in  the  Isle  of  AVight, 
on  the  Solent,  consisting  of  three  plots  marked  A.,  B., 
and  C,  and  Stratton  had  covenanted  that  he  would  not 
build  houses  on  C.  without  a  certain  interval  between 
them,  which  would  have  permitted  a  sea-view  across  C. 
from  houses  built  on  B. ;  that  in  the  year  1851  Stratton 
r*rr4-j  proposed  to  underlet  to  Harbour  *for970  years 
a  considerable  portion  of  the  plot  marked  B.  for 
the  purpose  of  building  marine  villas  upon  it ;  and 
that  the  value  of  such  land  depends  materially  upon 
the  houses  to  be  erected  upon  it  having  a  view  of  the 
sea.  Under  these  circumstances,  the  underlease  of 
1851  was  executed,  containing  a  covenant  by  Stratton 
with  Harbour,  by  which,  after  a  recital  of  the  lease  of 
1845,  Stratton,  for  himself,  his  heirs,  executors,  adminis- 
trators, and  assigns,  covenanted  with  Harbour,  his  exe- 
cutors, administrators,  and  assigns,  that  he,  Stratton,  his 
executors,  administrators,  and  assigns,  would  thenceforth 
observe  the  lessee's  covenant  contained  in  the  same 
lease.  The  underlease  does  not  rej)eat  the  words  of  the 
covenant  in  the  lease  as  to  the  interval  to  be  left  be- 
tween the  houses  to  be  built  on  C.  But  'verba  relata 
inesse  videaniur  ;  and  according  to  the  dictum  oi  Parhe, 
B.,  in  Doughty  v.  Bowman  (A),  'A  covenant  to  perform 
the  covenants  of  a  lease  has  no  other  effect  than  if  the 
former  covenants  had  been  inserted.'  I  conceive,  there- 
fore, that  this  covenant  in  the  underlease  was  tanta- 
mount to  a  covenant  by  Stratton,  for  himself,  his  heirs, 
executors,  administrators,  and  assigns,  not  to  build 
houses  on  C.  without  leaving  the  stipulated  interval  be- 
tween them.  Is  not  this  covenant  still  binding  on 
Stratton  ?     He  admits  that  it  was  binding  on  him  until 

(A)  11  Q.  B.  (63  E.  C.  L.  K.)  454. 

550 


LECT.  X.]  COXSTEUCTION.  554 

he  surrendered  *the  lease  of  1845,  and  tliat  r.hrrr-| 
until  then  an  injunction  might  have  been  ob- 
tained by  Harbour  against  his  building  houses  on  C. 
contrary  to  the  covenant.  He  now  relies  ujDon  the  sur- 
render. I  entirely  concur  in  the  general  maxim,  that 
a  covenant  to  perform  the  covenants  of  a  lease,  is  only 
binding  during  the  subsistence  of  the  lease ;  but,  look- 
ing to  the  covenant  in  this  underlease,  it  is  evident  to 
me  that  the  parties  intended  that,  in  as  far  as  it  con- 
ferred any  benefit  upon  Harbour,  it  should  remain  in 
force  during  the  currency  of  the  underlease.  Harbour 
acquired  a  material  benefit  by  Stratton's  covenant  with 
him  to  perform  the  covenant  in  the  lease  from  Sir  K. 
Simeon  as  to  the  mode  in  which  the  houses  were  to 
be  erected  between  B.  and  the  margin  of  the  Solent. 
It  cannot  properly  be  called  an  easement  or  servitude 
over  C.  But  Harbour  acquired  a  right  to  an  immunity 
which  materially  enhanced  the  value  of  the  land  which 
was  sub-let  to  him,  and  restrained  the  use  of  part  of 
the  land  demised  to  Stratton.  If  there  had  been  in  the 
underlease  a  direct,  express,  or  specific  covenant  by 
Stratton  that,  during  the  currency  of  the  underlease, 
he  would  not  build  upon  C.  so  as  to  injure  the  prospect 
from  B.,  it  was  not  contended  that  this  covenant  would 
have  been  affected  by  the  surrender.  But  I  conceive 
that  the  covenant  to  perform  all  the  covenants  in  the 
lease  which  contained  such  a  covenant,  is  exactly 
equivalent.  When  Stratton  had  sub-let  B.,  at  the  same 
*time  restraining  the  mode  of  enjoying  C.  dur-  p:.-^^-. 
ing  the  currency  of  the  underlease,  he  could 
not  by  any  surrender  derogate  from  the  right  which 
Harbour  had  acquired.  Harbour  was  a  stranger  to  the 
surrender,  and  could  not  be  prejudiced  *by  it. 

"  If  Stratton,  before  the  surrender  of  the  lease  of  1845, 
is  supposed  to  have  covenanted  in  the  underlease  to  Har- 

551 


55G  CONSTRUCTION.  [lECT.  X. 

bour  so  as  to  give  Harbour  an  interest  in  any  part  of  the 
land  devised  by  the  lease  of  1845,  upon  that  interest  the 
subsequent  surrender  could  have  no  operation.  Tliat 
such  was  the  intention  of  the  parties  when  the  under- 
lease of  1851  was  executed,  I  cannot  doubt,  and  I  think 
that  this  intention  is  sufficiently  manifested  by  the  lan- 
ouage  they  have  employed. 

"  To  get  at  the  intention  of  covenants  it  is  not  neces- 
sary  to  look  for  any  technical  form  of  words.  The 
principles  upon  which  covenants  are  to  be  construed 
are  elaborately  and  lucidly  laid  down  and  illustrated 
in  the  judgment  of  Lord  Chancellor  Chelmsford  in  the 
case  of  Monypenny  v.  Monypenny,  in  which  he  over- 
ruled (I  think  very  properly)  the  judgment  of  two 
Common  Law  Judges,  who  had  de23arted  from  these 
principles." 

The  few  strong  expressions  used  by  Lord  Tenter  den 
in  the  case  of  Doe  d.  By  water  v.  Brandling  (i),  as  tc 
the  mode  of  construing  Acts  of  Parliament,  are  equally 
Pj5.p._^-j  applicable  to  the  mode  of  *construing  con- 
tracts;  and  their  reasonableness  will  appear 
from  the  mere  enunciation  of  them  : — "  We  are  to  look, 
not  only  at  the  language  of  the  preamble  or  of  any 
particular  clause,  but  at  the  language  of  the  whole  Act ; 
and  if  we  find  in  the  preamble  or  in  any  particular 
clause,  an  expression  not  so  large  and  extensive  in  its 
import  as  those  used  in  other  parts  of  the  Act,  and 
upon  a  view  of  the  whole  Act  we  can  collect  from  the 
more  large  and  extensive  expressions  used  in  other 
parts  the  real  intention  of  the  Legislature,  it  is  our 
duty  to  give  effect  to  the  larger  expressions,  notwith- 
standing the  phrases  of  less  extensive  import  in  the 
preamble  or  in  any  particular  clause."  In  like  manner, 
general  words  may  be  restrained  by  the  recital,  where 

(i)  7  B.  &  C.  (14  E.  C.  L.  K.)  660. 

652 


LECT.  X.]  CONSTRUCTION.  557 

it  is  evident  from  the  whole  agreement  that  they  were 
intended  to  apply  to  the  matter  recited.  Thus,  a  deed 
recited  that  disputes  were  subsisting  between  Simons 
and  Johnson,  about  which  actions  at  law  had  been 
brought,  and  that  it  had  been  agreed,  in  order  to  put 
an  end  thereto,  that  each  of  them  should  execute  a 
release  of  all  actions  and  causes  of  action,  claims,  and 
demands  which  each  of  them  then  had  or  miglit  claim 
by  reason  of  anything  whatsoever.  "  I  cannot  read 
this,"  said  Lord  Tenterden,  "  without  seeing  that  the 
release  which  follows  was  intended  to  apply  to  the 
matter  recited,  namely,  the  actions  then  depending,  and 
that  the  object  was  to  put  an  end  to  them.  The  gener- 
ality %f  the  language  was,  then,  confined  by  the  r<:KnQ-\ 
recital"  {k).  ^        ^ 

An  important  instance  of  the  rule  which  we  have 
been  considering,  is,  that  where  general  words  follow 
others  of  more  particular  meaning,  they  are  to  be  con- 
strued as  applicable  to  things  ejusdem  generis  with  the 
former  particular  words  (/).  Thus,  an  action  was 
brought  upon  a  policy  of  insurance  in  the  ordinary 
form,  wherein  the  perils  which  the  insurers  are  to  bear 
are  stated  to  be  "  of  the  sea,  men-of-war,  fire,  enemies, 
pirates,  rovers,  thieves,  jettisons,  letters  of  mart  and 
countermart,  surprisals,  takings  at  sea,  arrests,  restraints, 
and  detainment  of  all  kings,  princes,  and  people,  of 
what  nation,  condition,  or  quality  soever,  barratry  of 
the  master  and  mariners,  and  of  all  other  perils,  losses, 
and  misfortunes  that  have  or  shall  come  to  the  hurt, 
detriment,  or  damage  of  the  said  goods  and  merchandise 
and  ship,  &c.,  or  any  part  thereof."     The  facts  of  the 

{k)  Simons  v.  Johnson,  3  B.  &  Ad.  (23  E.  C.  L.  R.)  175 ;  Payler  v.  Homer- 
Bhara,  4  M.  &  Sel.  423. 

{I)  Cullen  V.  Butler,  5  M.  &  Sel.  461 ;  Naylor  v.  Palmer,  22  L.  J.  (Ex.)  329 ; 
8  Exch.  739  S.  C. ;  Jones  v.  Nicholson,  23  L.  J.  (Ex.)  330  ;  10  Exch.  28  S.  C; 
Lozano  v.  Janson,  28  L.  J.  (Q.  B.)  337.    See  also  ante,  p.  *279. 

553 


558  coNSTRUCTiois'.  [lect.  X. 

case  were,  that  the  ship  and  goods  had  been  sunk  at 
Bea  by  another  and  friendly  vessel  firing  upon  her,  mis- 
taking her  for  an  enemy  ;  and  the  question  was,  whether 
the  injury  was  within  the  general  words  with  which  the 
perils  enumerated  were  concluded.  The  Court  decided 
*that  the  assured  was  entitled  to  recover,  as  the 
•-  -"  loss  was  of  the  same  kind  as  the  perils  expressly 
mentioned,  and  was,  therefore,  within  the  general  terms. 
"  If,"  said  Lord  Ellenborough,  in  delivering  the  judg- 
ment of  the  Court  of  King's  Bench,  "  it  be  a  loss  by 
perils  of  the  sea,  merely  because  it  is  a  loss  happening 
upon  the  sea,  as  has  been  contended,  all  the  other  causes 
of  loss  specified  in  the  policy  are,  upon  that  ground, 
equally  entitled  so  to  be  considered ;  and  it  would  be 
unnecessary  ever  to  assign  any  other  cause  of  loss  than 
a  loss  by  perils  of  the  sea.  But,  as  that  has  not  been 
the  understanding  and  practice  on  the  subject  hitherto, 
and  inasmuch  as  the  very  insertion  of  the  general  or 
sweeping  w^ords,  as  they  are  called,  in  the  policy  after 
the  special  words,  imports  that  the  special  words  were 
not  understood  to  include  all  perils  happening  on  the 
sea,  but  that  some  more  general  words  were  required  to 
be  added  in  order  to  extend  the  responsibility  of  the 
underwriters  unequivocally  to  other  risks  not  included 
within  the  proper  scope  of  any  of  these  enumerated 
perils,  I  shall  think  it  necessary  only  to  advert  shortly 
to  some  of  the  reasons  upon  which  we  think  that  the 
general  words,  thus  inserted,  comprehend  a  loss  of  this 
nature.  The  extent  and  meaning  of  the  general  words 
have  not  yet  been  the  immediate  subject  of  any  judicial 
construction  in  our  courts  of  law.  As  they  must,  how- 
ever, be  considered  as  introduced  into  the  policy  in 
^furtherance  of  the  objects  of  marine  insurance, 
|_  obUJ  ^^^^  ^^^^  \mYQ  the  effect  of  extending  a  reason- 
able indemnity  to  many  cases  not  distinctly  covered  by 
554 


LECT.    X.]  CONSTRUCTION.  560 

the  special  words,  they  are  entitled  to  be  considered  as 
material  and  operative  words,  and  to  have  the  due  effect 
assigned  to  them  in  the  construction  of  this  instrument; 
and  which  will  be  done  by  allowing  them  to  compre- 
hend and  cover  other  cases  of  marine  damage  of  the 
like  kind  with  those  which  are  specially  enumerated 
and  occasioned  by  similar  causes  (m)." 

Another  very  clear  example  {n)  of  the  same  rule  is 
afforded  by  a  case  where  a  ship  loaded  with  corn  was 
forced  by  stress  of  weather  into  Elly  harbour,  in  Ire- 
land, and  there  happening  to  be  a  great  scarcity  of  corn 
there  at  the  time,  the  people  came  on  board  the  ship  in 
a  tumultuous  manner,  took  the  government  of  her,  and 
suffered  her  to  drive  on  rocks,  where  she  was  stranded. 
The  question  was  whether  she  was  detained  by  people 
as  in  the  policy  above  mentioned.  "  The  word  *  people,'  " 
said  Mr.  Justice  Buller,  "  in  the  policy  means  the  su- 
preme power,  the  power  of  the  country,  whatever  it  may 
be.  This  appears  clear  from  another  part  of  the  policy; 
for  when  the  underwriters  insure  against  the  wrongful 
acts  of  individuals,  they  describe  them  by  the  names  of 
*pirates,  rovers,  thieves;  then,  having  stated  all  p.;.^^^-. 
the  individual  persons  against  whose  acts  they  '-  ^ 
engage,  they  mention  other  risks,  those  occasioned  by 
the  acts  of  kings,  princes,  and  people  of  what  nation, 
condition  or  quality  soever.  These  words,  therefore, 
must  apply  to  nations  in  their  collective  capacity." 
They  did  not,  therefore,  include  a  mob  of  rioters. 

It  is  obvious,  that,  if  the  whole  of  the  agreement  is 
to  be  considered,  the  place  where  it  was  made  {o),  the 
time  when,  the  objects  of  the  parties,  and  the  depart- 
ment of  science  and  art,  trade  or  commerce,  to  which 

(m)  Cull  en  v.  Butler,  supra. 

(n)  Nesbitt  v.  Lushington,  4  T.  R.  783 ;  Glaholm  v.  Hays,  2  M.  <k  Gr.  (40  E 
C.  L.R.)  2o7. 

(o)  See  Pust  v.  Dowie,  33  L.  J.  (Q.  B.)  172. 

655 


561  CONSTEUCTION.  [lECT.  X. 

the  subject-matter  of  it  belongs,  must  be  regarded  ;  lor, 
otherwise,  the  meaning  of  words  which  have  peculiar 
acceptations  at  different  times  and  places,  and  in  rela- 
tion to  different  subject-matters,  cannot  be  accuiately 
understood.  But  bearing  in  mind  these  observations  as 
to  the  peculiar  meaning  which  words  sometimes  bear, 
and  to  the  context  of  the  whole  contract,  the  usual  and 
proper  mode  of  undeistanding  words  is  according  to 
their  ordinary  sense  and  meaning  (p).  Of  this  mode 
the  case  of  Barton  v.  Fitzgerald  (q),  is  a  strong  instance 
In  this  case  the  defendant,  by  deed  reciting  a  lease  for 

^    the  term  of  ten  years,  which  by  ^several  assip;n- 
r  5621  .  •     •/¥• 

•-         -'    ments  had  come  to  him,  and  that  the  plaintiff 

had  contracted  for  the  absolute  purchase  of  the  premise-s, 
assigned  them  to  the  plaintiff'  for  the  residue  of  the 
term  in  as  ample  a  manner  as  he  held  the  same,  and 
covenanted  that  it  was  a  good  and  subsisting  lease,  valid 
in  law,  and  not  forfeited  or  otherwise  determined  or  be- 
come void  or  voidable.  The  fault  was,  that  the  original 
lease  was  for  ten  years  determinable  on  a  life  which  fell 
before  the  ten  years  expired,  but  after  this  assignment 
to  the  j)laintiff.  And  the  Court  held,  that  the  plain 
and  absolute  terms  of  the  covenant  must  have  their  full 
meaning,  and  that  consequently  it  had  been  broken  by 
the  defendant;  although  there  was  another  covenant 
ao-ainst  incumbrances  confined  to  such  as  were  created 
by  the  defendant,  and  those  who  might  claim  under 
him,  and  a  covenant  for  quiet  enjoyment  restrained 
in  the  same  manner  (r).  Anotlier  instructive  instance 
of  the  rule  of  giving  to  each  word  its  ordinary  and 
popular   meaning   as   evidently    affected   by   the   con- 

(p)  See  per  Lord  Wensleydale  in  Grey  v.  Pearson,  6  H.  L.  C.  61.  106;  per 
Jessel,  M.  R.,  in  Ex  parte  Walton,  in  re  Levy,  17  Ch.  Div.  746,  750;  50  L.  J. 
(Ch.)  657,  659. 

(q)  15  East,  530. 

(r)  See  VVorthington  v.  "Warrington,  5  C.  B.  (57  E.  C.  L.  E.J  635. 

556 


LECT.  X]  CONSTRUCTION.  562 

text  or  circumstances  before  mentioned,  is  furnished 
by  the  case  of  Lord  Dormer  v.  Knight  [s],  in 
which  a  deed  had  been  executed  by  the  defendant, 
granting  an  annuity  for  the  use  of  his  wife;  pro- 
vided that,  if  she  shouhl  associate,  continue  to  keep 
company  with,  or  cohabit,  or  criminally  correspond 
with  a  person  named,  tlie  annuity  should  cease.  It 
*was  held  that  all  intercourse,  however  inno-  r^^AQ"] 
cent,  was  prohibited.  "  The  words  of  the  deed," 
said  the  Court,  "  are  as  general  as  can  be,  and  go  much 
further  than  the  exclusion  of  criminal  cohabitation. 
The  intention  was  to  put  a  stop  to  all  intercourse  what- 
ever between  these  two  persons.  The  receiving  a  per- 
son's visits  whenever  he  chooses  to  call,  is  associating 
with  him.  The  parties  have  chosen  to  express  them- 
selves in  these  terms,  and  the  words  must  receive  their 
common  meaning  and  acceptation."  In  like  manner, 
where  a  warrant  of  attorney  had  been  given  to  the 
plaintiff  by  the  defendant,  but  it  was  agreed  not  to  enter 
up  judgment  upon  it  unless  the  defendant  should  dis- 
pose of  iiis  business  or  become  bankrupt  or  insolvent,  it 
was  held  that  the  latter  words  meant  a  general  inability 
to  pay  his  debts,  and  not  merely  his  having  recourse  to 
the  protection  of  the  Insolvent  Courts  {t). 

But  a  very  little  consideration  will  show  that  the  rule 
of  understanding  the  words  and  sentences  in  their  ordi- 
nary meaning,  when  it  is  not  restrained  by  the  context, 
is  perfectly  consistent  with  the  rule  that  the  whole  con- 
text is  to  be  considered ;  which  is,  indeed,  the  just  rule 
of  interpretation,  and  is  very  conveniently  couched  in 
the  ancient  maxim  of  the  law,  Ex  antecedentibus  et  con' 
sequentibus  Jit  optima  interpretatio  [u) 

(«)  1  Taunt.  417. 

(0  Biddlecorabe  v.  Bond,  4  Ad.  &  E.  (31  E.  C.  L.  R.)  332. 

(«)  1  Shep.  Touch.  87  ;  Coles  v.  Hulme,  8  B.  &  C.  (15  E.  C.  L.  R.)  568. 

557 


564  CONSTRUCTION.  [lect.  X. 

*These  are  the  principal  rules  for  the  con- 
L  '  ^  J  structiou  of  contracts.  There  are  others,  less 
general,  which  are  sometimes  referred  to.  They  will  be 
found  very  clearly  treated  of  in  Broom's  Maxims,  last 
edition ;  and  both  these  and  the  more  general  rules 
which  it  has  been  attempted  to  illustrate  in  this  volume, 
are  explained  at  large  in  Sheppard's  Touchstone ;  in 
which  book,  indeed,  many  of  the  topics  treated  of  in 
these  Lectures  will  be  found  explained  in  the  most 
scientific  and  masterly  manner. 


0G8 


INDEX. 

fTHE   FIGURES   EEFER  TO   THE   MARGINAL   PAGES.] 
ABROAD, 

contract  made,  expounded  by  foreign  law,  365. 

but  if  sued  upon  here,  remedy  according  to 
English  law,  333,  n.  (z),  366. 
ACCEPTANCE, 

of  goods,  141,  143.    See  Statute  of  Frauds,  sec.  17. 
of  offer,  153,  165. 

offer  may  be  rescinded  until,  159,  164. 

of  services,  when  sufficient  to  show  implied  contract  to  pay 
for  them,  200,  201. 
ACCOUNT, 

action  of,  503. 
infant  cannot  state  an,  321. 
ACCRUAL  OF  CAUSE  OF  ACTION,  506. 
what  is,  507,  508. 

fraudulent  concealment  of,  effect  of  on  time  of  limitation, 
537-539. 
ACKNOWLEDGMENT,  510,  512,  519-530.     See  Limitation 

Statutes  of. 
ACTION, 

cannot  be  brought  for  fraudulent  representation,  unless  in 

writing,  117-120. 
forbearance  of,  when  a  consideration,  183-189. 
forms  of,  practically  abolished,  502. 
of  debt,  lb. 
of  assumpsit,  503,  513. 
of  covenant,  503. 
of  account,  lb. 
under  Judicature  Act,  502. 

barred     by    Statute    of    Limitations.      See     Limitation, 
Statutes  of. 
ACTS  OF  PARLIAMENT, 

contracts  contravening  objects  of,  239-241. 
commencement  of  operation  of,  rule  as  to,  331. 
mode  of  construing,  generally,  556,  557. 

words  ejusdem  generis  in,  279. 

559 


560  INDEX. 

ADEQUACY    OF    CONSIDERATION,    176-180,    205,    226, 
227. 
latter  must  be  of  some  value,  180. 
AD  IDEM, 

parties   must   consent,  in   order  to   make   a  contract,  147, 
153-156. 
ADMINISTRATOR.    /See  Executor. 
ADMISSION, 

verbal,  part  payment  under  Statute  of  Limitations  may  be 
proved  by,  536,  537. 
ADVOWSON.    See  Simony. 

purchase  of  life  estate  in,  not  simoniacal,  283,  n.  (r). 
AGENT,  405-499.    See  Parties  to  Contracts,  ix. 
to  execute  deed  must  be  authorized  by  deed,  37. 
under  Statute  of  Frauds  must  not  be  the  other  party,  146. 

See  Statute  of  Frauds. 
signature  of,  under  Statute  of  Frauds,  may  be  in   double 

capacity,  116. 
remunerated  and  unremunerated,  190,  191. 
del  credere,  what,  113. 

terms   of    undertaking    of,   need    not    be     in 
writing,  lb. 
employed  to  bet  and  losing,  when  he  can  recover  from  prin- 
cipal, 271. 
of  corporation,  to  be  appointed  by  deed,  412. 
contract  by,  ratification  of  by  principal,  430,  431. 
commission,  same  as  factor,  469,  470. 
where  wife  binds  her  husband  as,  483-499. 
may  sign  acknowledgment  so  as  to  take  debt  out  of  Statutes 
of  Limitation,  406,  530. 

AGENCY, 

notice  of  determination  of,  432,  433. 

of  wife,  491. 
AGREEMENT.    See  Statute  of  Frauds  ;  Contracts. 
word,  how  understood,  77. 
consideration  must  appear  in,  to  satisfy  Statute  of  Frauds, 

except  in  a  guaranty,  77-80. 
all  the  other  terms  must  appear  in,  to  satisfy  Statute  of 

Frauds,  80,  81. 
need  not  be  in  one  writing,  but  may  be  in  several,  85,  146, 

147. 


INDEX. 


561 


AGREEME'NT— continued. 

need  uot  be  in  writing,  if  their  connection  appears  on  their 
face  without  verbal  evidence,  88-91, 
146,  147. 
unless  the  verbal  evidence  be  merely 
to  identify  documents  referred  to, 
91-98. 
signature  to  agreement  must  be  that  of  party  to  be  charged, 

93,  96, 146. 
no  matter  where  signature  placed  if  intended  to  bind,  93. 
to  satisfy  Statute  of  Fratuds  must  exist  before  action,  97. 
if  unwritten  not  void  under  the  4th  or  17th  sec,  of  Stat,  of 
Frauds,  but  no  action  can  be  brought  upon  it,  97,  143, 
144. 
made  in  consideration  of  marriage,  76,  77,  120-122. 
for  an  interest  in  lands,  76,  77, 122-131. 
for  lease  not  exceeding  three  years  must  be  in  writing  though 

such  lease  need  not,  131-134. 
not  to  be  performed  within  a  year,  134-139. 
ALIENS,  365-368.    See  Parties  to  Contracts,  v. 
ALIEN  ENEMIES,  239,  341,  342,  367.    See  Parties  to  Con- 
tracts, v. 
AMBIGUITY, 

patent,  what,  49. 

never  to  be  explained  by  verbal  evidence,  lb. 
latent,  what,  53. 

may  be  explained  by  verbal  evidence,  49. 

when,  50,  52-55,  91,  92,  116. 
APOTHECARIES'  ACT, 

contract  to  evade,  240. 
now  repealed,  lb. 
ASSENT, 

of  both  parties  necessary  to  a  contract,  153,  154. 
must  be  to  same  thing,  147, 153-163. 
must  be  to  precise  terms  offered,  158-163. 
to  terms  on  ticket,  by  accepting  it,  154,  n.  (k"). 
insufficient,  if  brought  about  by  fraudulent  misrepresenta- 
tion as  to  who  the  other  party  is,  156. 
ASSIGNABLE, 

covenants  between  landlord  and  tenant  running  with  the 
land,  32. 
ASSIGNABLE  CONTRACTS,  31,  32,  294,  295. 
36 


562  INDEX. 

ASSIGNMENT, 

of  chattel  interest,  must  be  by  deed,  when,  37. 

of  remainder  of  term,  what  amounts  to,  129. 

of  chose  in  action,  31,  238,  294,  295. 

when  valid  under  Judicature  Act,  294,  n.  (.t). 
ASSUMPSIT, 

action  of,  503,  513. 
ATTORNEY, 

not  within  the  Lord's  Day  Act,  279. 

authorized  under  seal  of  registered  company  may  execute  deed 
under  his  own,  400. 
AUTHORITY, 

coupled  with  an  interest,  irrevocable,  271. 
BANKRUPTCY, 

debt  released  by  discharge  in,  promise  to  pay,  204. 

Acts,  contracts  violating  policy  of,  240,  242. 
BAIL, 

contract  to  indemnify,  against  his  liability  as  such,  illegal, 
236. 
BARON  AND  FEME,  328,  n.  (m).    See  Husband  ;  Wife  ;  Par- 
ties TO  Contracts,  ii.,  ix.  (e). 
BARGAIN  AND  SALE, 

deed  of,  requires  pecuniary  consideration,  17. 

the  word  "  bargain"  in  the  17th  sec.  of  Statute  of  Frauds, 
148,  149. 

there  cannot  be  a  bargain  without  two  parties,  149. 
BENEFICES, 

illegal  charges  on,  290. 
BETTING,  264-271. 
BEYOND  SEAS,  509, 510, 514-516.    See  Limitation,  Statutes 

OF. 

BILLS  OF  EXCHANGE, 

consideration  presumed,  181,  182. 

given  for  illegal  consideration,  295-208. 

infant  cannot  biud  himself  by,  320. 

given  to  wife  dum  sola,  at  Common  Law,  330. 

power  of  corporations  to  accept,  374. 

liability  of  Joint-Stock  Companies  for,  390-395. 

under  Companies  Act  1862,... 400,  401. 

but  this  Act  gives  no  fresh  powers  of  accepting. 
401,  402. 
liability  of  firm  upon  bills  drawn  by  partner,  463,  464. 


INDEX.  563 

BOND, 

conditionally  delivered  to  third  party,  an  escrow,  9-11. 
delivered  as  escrow  binding  on  estate  of  obligor,  when  condi- 
tion performed  after  his  death,  11. 
for  maintenance  founded  on  previous  seduction,  good,  17. 
collateral,  to  secure  mortgage  debt.    See  Limitation,  Stat- 
utes OF,  (a), 
conditional   to   remove   public   nuisance,   and    founded   on 

abandonment  of  indictment,  valid,  234. 
resignation,  286-290. 

if  general,  void,  289. 

special,  in  favour  of  certain  relations,  now  valid, 
290. 
containing  penalty,  not  binding  on  an  infant,  though  for 

necessaries,  322. 
conditional  to  do  various  things,  accruer  of  cause  of  action 

on,  508. 
to  secure  gaming  debt,  within  equity  of  5  &  6  Will.  IV.,  c. 
41, ...298,  n.  (m). 
BRIBE, 

promise  of,  illegal,  212. 
to  voters,  235. 
BROCAGE.    See  Marriage. 

BROKER,  465-469.    See  Parties  to  Contracts,  ix.  {e). 

stock,  employed  to  speculate,  may  recover  commission  and 

indemnity  for  losses,  268,  n.  (tt). 
insurance,  467-469. 

in  London,  not  duly  admitted,  cannot  recover  commission, 
252,  466. 
CALENDA  R  MONTH.    See  Month. 
CAUSE  OF  ACTION, 

accruing  of,  506-508. 

time  from   which  Statutes   of  Limitation   run, 

506,  513. 
if  fraudulently  concealed  may  prevent  time  of 
limitation  running,  537-539. 
CHAMPERTY  AND  MAINTENANCE,  236-238. 
CHATTEL  INTERESTS, 

assignment  of,  when  to  be  by  deed,  37. 
CHILDREN, 

liability  of  parent  for  goods  supplied  to,  200,  499. 


564  INDEX. 

CHOSE  IN  ACTION, 

not  assignable  at  Common  Law,  31,  294. 

origin  of  rule,  238. 
assignment  of,  under  Judicature  Act,  31,  294,  295. 
of  wife,  at  Common  Law,  330,  343-346. 

reduction  into  possession  of,  by  husband,  330,  346- 

348. 
under  M.  W.  P.  Act,  1882,.. .337,  338. 
CLAIM, 

forbearance  of,  a  consideration,  183. 

if  doubtful  or  unfounded,  186,  187. 
CLUB, 

power  of  committee  of,  to  bind  members,  429,  430. 

COHABITATION,  ILLICIT, 

if  future  an  illegal  consideration,  211. 

if  past  no  consideration,  17,  211. 
COMMON  LAW, 

practice  of  English  courts  of,  1. 

contracts  divided  by,  into  three  classes,  2. 

contracts  by  way  of  gaming  or  wagering  not  unlawful  at, 
267. 
COMMON  SEAL, 

corporation  must  contract  under,  370,  379. 

except  in  certain  cases,  371-379,  399,  400. 

urban  authority  must  contract  under,  where  amount  over 
£50,... 379. 
COMPANIES,  381-404.    See  Parties  to  Contracts,  viii. 

illegal,  what  are,  under  s.  4  of  Companies  Act,  1862,... 292, 
293. 

contracts  by,  illegal,  293. 
COMPROMISE, 

of  indictment,  when  valid,  233. 
COMPULSORY  PAYMENT, 

request  to  make  and  promise  to  repay  both  implied  in  caae 
of,  197. 

of  interest,  does  not  bar  Statute  of  Limitations,  532. 
CONDITION, 

freehold  cannot  be  granted  without  deed  upon,  36. 

chattel  real  or  personal  may,  at  Common  Law,  lb. 
CONDITIONAL  DELIVERY, 

of  a  deed  to  a  third  person,  8,  10,  11. 


INDEX.  565 

CONDUCT, 

estoppel  by,  26-29. 
CONSENT, 

to  the  same  thiug  necessary  to  a  contract,  147,  153. 
CONSIDERATION, 

not  essential  to  contract  by  deed,  13,  165-167. 

except  in  case  of  deeils  under  Statute  of  Uses,  17. 
or  coming  under  13th  Eliz.,  c.  5,. ..165. 
or  in  restraint  of  trade,  17,  180,  225. 
implied  in  deed,  13,  165. 

not  in  simple  contract,  14,  105,  165,  167. 
reason  of  requiring  a  consideration  in  simple  contract,  168. 
of  difference  in  respect  of,  between  contract  by  deed 
and  simple  contract,  15,  16,  168, 
deed  of  bargain  and  sale,  void  without,  17. 
covenant  to  stand  seised,  void  without,  17. 
where  any  part  of,  illegal,  it  avoids  whole  contract,  20,  208, 

209. 
secii^  where  consideration  good   and   several  covenants  or 

promises,  some  legal  and  some  illegal,  lb. 
essential  to  existence  of  simple  contract,  165. 
must  appear  in  memorandum  under  4th  sec.  of  Statute  of 
Frauds,  77-80. 

if  not  expressly,  at  least  by  implication,  80. 
except  in  the  case  of  a  guaranty,  79,  115. 
new,  of  guaranty  does  not  do  away  with  necessity  of  writing, 

112. 
of  marriage,  76,  77,  120-122. 
maxim  oi  nudum  pactum,  14,  15,  103,  167. 
reason  of  the  rule,  168. 
what  is  a,  170. 
benefit    to    promiser,    or  disadvantage   to   promisee,  170- 

176. 
must  move  from  promisee,  175. 
in  absence  of  fraud,  inadequacy  of,  no  ground  for  avoiding 

contract,  176-180,  226,  227. 
must  be  of  some  value,  180. 
bills  and  notes  always  presumed  to  be  for  a,  182. 
forbearance,  a,  183. 

of  doubtful  claim,  186. 
unfounded  claim,  186,  187. 
trust,  a,  189. 


566  INDEX. 

CONSIDERATION— co/iimwecZ. 

merely  moral,  insufficient,  203. 
executed  and  executory,  what,  194. 

distinction  between,  194-197. 
executed,  must  be  founded  on  a  previous  request,  194. 

but  the  request  will  be  implied  in  certain  cases,  197- 
204. 

as  also  the  promise,  199. 
immoral,  209-213. 
securities  for  a  gaming,  295-298. 
See  Simple  Contracts. 

CONSTRUCTION, 

of  contracts,  rules  of,  539-564. 

not  merely  conventional,  539. 
of  written  contracts  to  be  made  by  the  judge,  71,  539,  540 
of  terms  of  trade,  place,  &c.,  by  thojury,  71,  540. 
similar,  of  deeds  and  simple  contracts,  542. 

in  whatever  court  to  be  construed,  543. 
rule  of,  that  whole  of  document  be  considered,  lb. 

Monypenny  v.  Monypenny,  543. 

Piggott  V.  Stratton,  552. 

as  to  words  ejusdem  generis,  279,  558-561. 

that  circumstances  be  considered,  561. 

that  words  be  understood  in  ordinary  sense,  70,  561, 
562. 
of  statutes,  279,  331,  556,  557. 

CONTRACTING  PARTY, 

no  action  can  be  brought  to  charge,  where  Statute  of  Frauds 
not  complied  with,  97. 

CONTRACTS,  1. 

classification  of,  2,  3. 

in  all,  parties  must  assent  ad  idem,  147,  153 

three  classes  of,  3. 

of  record,  3,  4. 

incidents,  of,  4. 

may  be  discharged  by  deed,  5. 
by  deed,  5.     See  Deed. 
without  deed,  5.    See  also  Simple  Contracts. 
illegal  at  Common  Law,  18,  209-248.    See  Illegal  Cok- 

TRACTS. 


INDEX.  567 

COT^RA.CTS— continued. 

illegal  by  statute,  18,  209,  250-293.    See  Statute,  Con- 
tracts ILLEGAL  BY, 
in  restraint  of  trade.    See  Restraint  of  Trade. 
how  affected    by  Statute  of   Frauds.      See  Statute  of 

Frauds. 
where  contract  made  available  without  bringing  action  on 

it,  97,  98. 
in  consideration  of  marriage,  76,  77,  120-122. 
for  the  sale  of  lands,  76,  77,  122-131. 
for  sale  of  growing  crop  of  mowing  grass,  123. 
to  take  water  from  a  well,  123. 
for  sale  of  growing  crop  of  potatoes,  lb. 
underwood,  126. 
fruit,  lb. 
to  occupy  lodgings  at  a  future  day,  128. 
with  public  house  broker  for  transfer  of  lease,  lb. 
for  sale  of  milk  walk,  129. 

other  examples  of,  for  sale  of  an  interest  in  land,  128-131. 
for  sale  of  timber,  126,  127,  143. 
not  to  be  performed  within  a  year,  134—139. 
for  tiie  sale  of  goods  of  value  of  ten  pounds  and  upwards, 

141-151. 
in  what  case  good  under  Statute  of  Frauds,  sec.  17,  lb. 
Statute  of  Frauds  dies  not  preclude  a  coutiact  being  re- 
scinded by  parol,  151. 
in  absence  of  fraud,  inadequacy  of  consideration  no  ground 

for  avoiding,  177. 
illegal,  207-306.    See  Illegal  Contracts. 
where  performance  of,  has  become  illegal  after  the  making, 

259,  n.  (6). 
of  worldly  business  on  the  Lord's  Day,  277-280. 
not  assignable  at  Common  Law,  31. 
assignable  under  Judicature  Act,  31,  294. 
some,  assignable  irres|iectively  of  Judicature  Act,  295. 
parties  to,  307-500.    See  Parties  to  Contracts. 
made  abroad,  expounded  by  foreign  law,  3B5. 

but  if  sued   upcm   here   remedy  according  to 
English  law,  353,  n.  (2),  366. 
of  companies,  if  ultra  vires  void,  397,  398. 
CONVICT, 

disability  of,  to  sue,  or  contract,  369. 


568  INDEX. 

CORPOKATION,  369-381.    See  Parties  to  Contracts,  vn. 
contracts  under  common  seal,  370,  375. 
exceptions  to  rule,  371-377,  379,  399,  400. 
COURT, 

to  construe  document  when  meaning  of  words  ascertained, 
71,540. 
COVENANT, 

a  promise  under  seal,  14. 

to  stand  seised,  void  without  consideration  of  blood  or  mar- 
riage, 17. 
legal  and  illegal,  20. 
between  landlord  and  tenant  assignable  before  Judicature 

Act,  32. 
assignable  under  Judicature  Act,  31, 
action  of,  503. 

action  on,  must  be  brought  within  twenty  years  after  cause 
of  action  accrued,  38,  505,  506,  508. 

or  within  twelve  years  if  it  be  a  covenant  in  a 
mortgage  deed  to  pay  principal  and  interest,  38,  n. 
ix),  509. 

or  to  pay  rent,  lb. 
to  do  various  things,  when  Statute  of  Limitations  begins 

to  run  against,  508. 
no  particular  technical  words  necessary  to  make,  550. 
CREDIT, 

question  whether  given  to  agent  or  principal,  442,  443. 
question  whether  given  to  one  partner  or  to  firm,  457-460. 
CREDITORS, 

specialty,   have    no    longer  priority   in   administration  of 

personal  effects,  34. 
simple  contract,  remedy  of  against  real  estate  of  deceased,  lb. 
where  debtor  taken  in  execution  discharged  by  consent  of, 
debt  formerly  satisfied,  109. 
CROPS  GROWING, 

contract  for,  123-127, 142. 
CUSTOM.     See  Usage. 

written  contracts  may  be  qualified  by,  55. 
parol    evidence    admissible    to   annex,  to    certain   written 
contracts,  when,  55-62. 

not  wheu   custom   incompatible   with   written 

contract,  57,  59,  63. 
nor  wheu  contract  unusual,  71. 


INDEX.  569 

CUSTOMARY  INCIDENTS 

may  be  annexed  by  parol  to  written  contracts,  59. 

DATE, 

apparent,  of   deed,  not  commencement  of   effect  of  deed, 
25. 

does  not   estop   parties  from   showing   true  date, 
lb. 

DEBT, 

promise  to  answer  for,  of  another,  must  be  in  writing,  76, 

77,  105.    See  Guaranty. 
person  whose  debt  is  guaranteed  how  far  must  be  himself 

liable,  106-112. 
released    by    discharge    in    bankruptcy,   promise  to    pay, 

204. 
action  of,  502,  505. 

DECEIT.    >See  Fraud 

DEED, 

contracts  by,  5. 

what,  lb. 

must  be  written  on  paper  or  parchment,  lb. 

though  written,  need  not  be  signed,  lb. 

must  be  sealed  and  delivered,  6. 

this  a  main  distinction  between  a  deed  and  any  other 
contract,  lb. 
delivery  of,  lb.,  7. 
to  whom  to  be  delivered,  7,  8. 
escrow,  8. 

conditional  delivery,  8-12. 
peculiarities  of,  13,  20,  29,  31. 
poll,  12. 

indented  or  indenture,  lb. 
does  not  require  consideration,  13. 

reason  of  this   rule,  15,  16, 
168. 
void  without  consideration,  if  made  under  Statute  of  Uses, 

17. 
void  without  consideration,  if  coming  under  13  Eliz.,  c.  5, 
165. 

or  if  in  restraint  of  trade,  17,  180,  225. 
illegality  of  consideration  of,  may  be  shown,  17,  18. 


570  INDEX. 

DEED — continued. 

covenants  in,  some  legal,  some  not  legal,  good,  20. 
estoppel  by,  20. 

of  no  effect,  except  upon  matters,  &c.,  founded 

upon  the  deed,  23. 
of  no  effect  if  facts  appear  by  the  deed,  lb. 
merger  by,  29. 

contract  merged  must  be  ad  idem,  29,  30. 
cannot  be  got  rid  of  by  parol,  30. 
covenant  in,  when  assignable,  even  before  Judicature  Act, 

31. 
former  advantages  of,  32-34. 

former  priority  of  creditors  by,  now  done  away,  34. 
when  necessary,  lb. 

to  pass  incorporeal  property,  35. 

a  freehold  estate  upon  condition,  36. 
to  render  gift  of  chattel  irrevocable,  lb. 
to  feoffments,  partitions,  exchanges,  leases,  as- 
signments, and  surrenders,  37. 
to  authorize  agent  to  execute  a  deed,  37,  412. 
to  contract  by  corporation,  370. 
to  appointment  of  agent  by  corporation,  412. 
to  assign  a  patent,  37. 
to  transfer  a  registered  ship,  38. 
remedies  on  contracts  by,  38,  505. 

period  of  limitation  on.    See  Limitation,  Statutes  of,  (a), 
difference  between  contracts  by,  and  simple  contracts,  13-17, 
20,  29-32,  38,  40,  41. 
DEFAULT, 

of  another,  promise  to  answer  for,  must  be  in  writing,  76,  77, 
105.     See  Guaranty. 
DEL  CEEDERE  AGEl:iT, 
what,  113. 

terms  of  undertaking  of,  need  not  be  in  writing,  lb. 
DELIVERY, 

requisite  to  a  deed.  5,  6. 

of  deed  by  words  without  touch,  6. 

or  by  touch,  without  words,  lb.,  7. 

to  whom  requisite,  7. 

as  an  escrow,  8. 

to  a  third  person,  lb. 

express  words  not  necessary  to  constitute  escrow,  10. 


INDEX.  571 

DELTVERY—contijiued. 

conditional,  must  be  to  third  person,  lb.,  11. 
DEMISE  OF  LAND, 

for  more  than  three  years,  must  be  in  writing,  37. 

for  not  more  than  three  years,  need  not,  132. 

but  agreement  for  such  demise  must  be  in  writing,  under  4th 
Sec,  of  Statute  of  Frauds,  lb. 
DESCRIPTION, 

of  parties,  without  names,  sufficient  to   satisfy  Statute  of 
Frauds,  84,  85,  149. 
DEVISEE, 

bound  by  covenant  which  binds  devisor,  33. 
DIRECTORS, 

provisional,  of  proposed  company,  liability  of,  423. 
DISTANCE, 

how  to  be  measured,  in  covenant  in  limited  restraint  of  trade, 
225. 

DOCUMENTS, 

several  may  be  read  together,  under  Sec.  4  of  Statute  of 

Frauds,  85,  89. 
under  Sec.  17,  146. 
See  Statute  of  Frauds. 
of  title,  under  Factors'  Acts,  482. 
DORMANT  PARTNER,  461. 
DOUBTFUL  CLAIM, 

forbearance  of,  a  consideration,  186. 
DRUNKEN  PERSON, 

contracts  of,  363-365.    See  Parties  to  Contracts,  rv. 
DURESS, 

vitiates  deed,  18. 
promises  made  under,  236. 
DUTIES,  PUBLIC, 

contracts  inconsistent  with,  235. 
See  Public  Policy. 
EARNEST, 

giving  of,  125,  142,  143.    See  Statute  of  Frauds,  Sec 
17. 
EJUSDEM  GENERIS, 

rule  for  construing  words,  in  statutes,  279. 

contracts,  558-561. 


572  INDEX. 

ELECTION, 

of  third  party  to  charge  principal  or  agent,  440-452. 
wheu  once  made,  binding,  442. 
what  amounts  to,  440,  443,  444. 
right  of,  how  qualified,  444,  446-452. 
ELECTORS, 

contracts  for  treating,  void,  235. 
EMBLEMENTS,  125. 
ENEMIES,  ALIEN, 

contracts  with,  239,  341,  342,  367.    See  Parties  to  Con- 
tracts, V. 
EQUITY, 

rules  of,  to  prevail  in  cases  of  conflict  between  rules  of  Com- 
mon Law  and  Equity,  99,  538,  n.  (r). 
rule  of,  as  to  part  performance  taking  case  out  of  Statute  of 

Frauds,  99. 
does  not  extend  to  contract  of  service,  100. 
ESCROW, 

distinction  between  a  deed  and,  8. 
definition  of,  lb. 

conditional  delivery  of,  to  third  person,  8,  10, 11. 
to  constitute,  delivery  as  such  in  express  words  not  essential, 
10,  12. 
ESTATE, 

separate,  of  married  woman.    See  Property. 
ESTOPPEL, 

meaning  of,  20. 
created  by  deed,  lb. 
example  of,  in  the  case  of  a  receipt,  21. 
principle  of,  lb. 

allegation  to  operate  as,  must  be  definite,  21,  22. 
has  no  eflfect  on  matters  not  depending  on  the  contract  con- 
tained in  the  deed,  22. 

nor  if  the  facts  appear  by   the  deed, 
23. 
by  recital  in  deed,  21-25. 

binds  both  parties  to  facts  agreed  upon  by  both,  24. 
apparent  date  of  deed  does  not  create,  25. 
by  matter  of  record,  26. 
in  pais,  26-29. 

as  by  conduct,  lb. 


INDEX.  573 

EVIDENCE.    /See  Parol. 

of  contracts  of  record,  4. 

of  written  contracts,  41-74. 
EXCHANGES  OF  LAND, 

must  now  be  by  deed,  37. 
EXECUTED  AND  EXECUTORY  CONSIDERATIONS,  194. 
EXECUTOR  or  ADMINISTRATOR, 

contract  to  hind,  must  be  in  writing,  when,  76,  102-105. 
consideration  requisite  for,  77,  103-105. 
FACTOR,  464,  469-483.     See  Parties  to  Contracts,  ix.  (d). 
FACTORS'  ACTS,  1823  to  1877,... 472-483. 
FELON,  368,  369.    See  Parties  to  Contracts,  vi. 
FEOFFMENTS, 

must  now  be  by  deed,  37. 
FIXTURES, 

contracts  for,  127,  128. 

sale  of,  not  within  17th  Sec.  of  the  Statute  of  Frauds,  142. 
FORBEARANCE, 

a  consideration,  183. 

of  doubtful  or  unfounded  claim,  when,  186-189. 
FOREIGNER.    See  Alien. 
FOREIGN  LAW, 

contract  made  abroad  expounded  by,  365. 

but  if  sued  upon  here,  remedy  according  to  English 
law,  333,  n.  (2),  366. 
FRAUD, 

contracts  tainted  with,  vitiated,  18,  209,  244. 

may  be  either  active  or  passive,  244. 

distinction    between    legal   and   moral,   how   far    unsound, 
246. 

reckless  statement  of  untruth  may  be,  247. 

contract  induced  by,  voidable,  not  void,  248. 
till  rescinded,  valid,  Ibf 

and  fraudulent  purchaser  can  give 
title,  248,  249. 

of  third  party  causing  loss  to  one  of  two  innocent  persons, 
rule,  249. 

discovery  of,  when  time  of  limitation  runs  from,  537-539. 
FRAUDS,  STATUTE  OF.    See  Statute  of  Frauds. 
FRAUDULENT  CONTRACT, 

of  partner,  464. 


574  INDEX. 

FRAUDULENT  REPRESENTATIONS, 

as  to  character,  &c.,  cannot  be  sued  upon  unless  in  writing, 
117-120.    See  also  Misrepresentation,  Fraudulent. 
FRUCTUS  INDUSTRIALES,  125. 
FRUIT, 

sale  of  growing,  an  interest  in  land,  126. 
GAMBLING,  260-272. 
GAME, 

contract  giving  right  to  kill  and  take  away,  an  interest  in 
land,  131. 
GAMES, 

wagers  on,  260-267,  269,  272. 

bets  not  on,  within  the  statute,  267-269. 

GAMING, 

contracts  by  way  of,  not  unlawful  at  common  law,  267. 

void  by  statute,  260,  266,  267. 
consideration,  securities  for  a,  295-298. 

GIFT, 

of  chattel,  to  be  irrevocable,  must  be  by  deed,  36. 
if  by  deed,  vests  upon  execution,  lb. 

GOODS, 

contract  for  sale  of,  how  affected  by  Statute  of  Frauds, 
141-150.    See  Statute  of  Frauds,  Sec.  17. 

GRASS  GROWING, 

contract  for  sale  of,  123-127. 

GROWING  CROP, 

contract  for  sale  of,  123-127,  142. 

GUARANTY,  76,  77,  105-120. 

must  be  in  writing,  76,  106. 

person  whose  debt  guaranteed,  how  far  must  continue  him- 
self liable,  106-112. 

new  consideration  of,  does  not  dispense  with  writing,  112. 

for  default  or  miscarriage  in  breach  of  any  duty,  must  be 
in  writing,  113. 

undertaking  to  sell  del  credere  not  a,  within  Statute  of 
Frauds,  lb. 

the  promise  to,  must  be  made  to  the  creditor,  114., 

promise  made  to  debtor  to  pay  his  debt,  not  a,  within  the 
meaning  of  the  statute,  lb. 

consideration  of,  need  not  now  be  in  writing,  79,  80,  115. 


INDEX.  575 

HEIR, 

formerly  only  bound  by  ancestor's  deed,  if  named  therein,  32. 
HORSE  RACES,  261-265,  267,  269-272. 
HUSBAND, 

liability  of,  for  debts  of  wife,  contracted  before  the  marriage, 

now  limited,  331-335. 
at  Common  Law  might  sue  on  contract  of  wife,  828,  330, 

343-346. 
but  must  during  the  marriage  join  her  as  co-plaintiff,  330. 
except  in  action  on  bill  given  to  her  dum 
sola,  330,  345,  346. 
need  not  now  be  joined  with  her  as  plaintiff  or  defendant, 

in  an  action  in  respect  of  her  contracts,  350,  353. 
bound  by  contract  of  wife  on  ground  of  agency,  484. 
lunatic,  liable  for  necessaries  supplied  to  wife,  362,  492,  493. 
See  also  Parties  to  Contracts,  ii.,  ix.  (e). 
ILLEGAL  ACTS, 

indemnification  against,  236. 
ILLEGAL  CHARGES, 

on  benefices,  290. 
ILLEGAL  CONSIDERATIONS, 

bills  and  notes  given  for,  295-298. 
ILLEGAL  CONTRACTS,  17-20.  207-306. 
at  Common  Law,  18,  209-249. 
by  statute,   18,   19,   250-293.     See  Statute,  Contracts 

Illegal  by. 
promise  to  do  legal  and  illegal  things  void  as  to  latter,  20,  208. 
consideration,  if  any  part  of,  illegal,  whole  contract  fails,  20, 

209. 
immoral,  18,  209-213.    See  Immoral  Contracts. 
opposed  to  public  policy,  209,  213-243.    See  Public  Polict. 
tainted  with  fraud,  18,  209,  244-249. 

Yoidable  only,  not  void,  248. 
money  paid  or  goods  delivered  on,  cannot  be  recovered  back, 
298-300. 

unless  the  contract  be  made  illegal  to  pro- 
tect the  party  paying,  300. 
and  except  where  there  has  been  no  further 
performance  than  the  payment,  &c.,  305, 
306. 
ILLEGAL  COVENANTS,  20. 
ILLEGALITY, 

is  a  breach  of  common  or  statute  law,  18,  209. 


576  INDEX. 

ILLEGALITY— co7ifmMec?. 

in  the  case  of  a  statute  whether  act  forbidden  directly  or  by 

implication,  18,  250. 
as  where  a  penalty  is  imposed,. 
lb. 
of  consideration  vitiates  deed,  18,  207,  208. 

or  simple  contract,  207,  208. 
even  if  illegality  only  partial,  20,  209. 
incidental  merely  to  contract  does  not  avoid  it,  256-259. 
possible,  how  far  contract  avoided  by,  258. 
test  of,  where  demaud  connected  with  illegal  transaction  ia 
sought  to  be  enforced,  305,  306. 
ILLEGAL  WEIGHTS  AND  MEASURES,  291,  292. 
ILLICIT  COHABITATION, 

if  future,  illegal  consideration,  211. 
if  past,  no  consideration,  17,  211. 
IMMORAL 

consideration  vitiates  deed,  18,  207,  208. 

or  simple  contract,  207,  208. 
IMMORAL  CONTRACTS,  18,  209-213. 
no  action  lies  on,  208,  209. 
libellous  publication,  209. 

publisher  of,  cannot  sue  for  pirating,  210. 
letting  rooms  for  blasphemous  lectures,  211. 
illicit  cohabitation,  if  future,  illegal,  lb. 

if  past,  no  consideration,  17,  211. 
to  supply  prostitute  with  lodgings,  &c.,  211,  212. 
INADEQUACY  OF  CONSIDERATION,  176-180,  226. 
INCORPOREAL  PROPERTY, 

deed  necessary  to  transfer,  35. 
INCIDENTS, 

of  contracts  of  record,  4. 

illegal,  do  not  necessarily  vitiate  contract,  256-259, 
INDEMNIFICATION, 

against  illegal  acts,  236. 

liability  as  bail,  305. 
INDENTURE,  12. 
INDICTMENT, 

compromise  of,  18,  232-234. 
INFANT,  151,  308-328,  509,  514.     See  Parties  to  Contracts 
I. ;  LiMiTAT^ioN,  Statutes  o**. 


INDEX.  0/  4 

INFANT— continued. 

cou tracts  of,  can  no  longer  be  ratified  even  by  writing  so  aa 

to  charge  him,  152,  325,  326. 
may  contract  for  necessaries,  309. 

INFANTS  RELIEF  ACT,  1874,.. .152,  325,  326. 

INSANE  PERSON,  356-363,  432,  433,  493,  509,  514.    See  Par- 
ties TO  Contracts,  hi.  ;  Limitation,  Statutes  of. 

INSURANCE, 

contracts  of,  must  be  Avritten  or  printed,  152. 

wager  policies,  272-276. 

marine,  invalid,  unless  assured  has  interest,  274. 

life,  what  a  sufficient  interest  to  render  valid,  275. 

on  lives  of  children  under  10,  276,  n.  (s).  _, 

INSURANCE  BROKER,  467-469.  ^ 

INTEREST, 

what  is  an,  concerning  lands,  122-134. 

shares  in  joint-stock  companies  seised  of  land, 
not,  142,  387. 
authority  coupled  with,  irrevocable,  271. 
insurance  without,  invalid,  274,  275. 
payment  of.    See  Limitation,  Statutes  op. 
INTENTION, 

to  break  the  law,  when  necessary  to  be  shown,  in  order  to 
avoid  contract,  258. 
INTOXICATED  PERSON,  363-365.      See  Parties  to  Con- 

TRACTS,  IV. 

JOINT  DEBTOR,  517-519.    See  Limitation,  Statutes  of. 

JOINT-STOCK   COMPANIES,  292,  293,  381-404.      See  Par- 
ties TO  Contracts,  viii. 
JURISDICTION, 

common  law,  1. 
criminal,  lb. 
real  property,  lb. 
fiscal,  lb. 
JUSTICE, 

contract  obstructing  course  of,  231-236,  305,  n.  (<). 
LAND, 

contract  for  sale  of,  must  be  in  writing,  76.  77,  122-134. 

See  Statute  of  Frauds. 
37 


578  INDEX. 

LANDLORD  AND  TENANT, 

parol  evidence  admissible  to  annex  customary  incidents  to 
contracts  between,  56-59. 
LATENT  AMBIGUITY, 
what,  50,  53. 

may  be  explained  by  verbal  evidence,  49,  50,  52-55. 
LEASE, 

of  land  for  more  than  three  years  from  the  making,  must  be 

by  deed,  37,  75,  132. 
agreement  for,  131,  132. 
LEGAL  COVENANTS,  20. 
LETTER, 

offer  and  acceptance  by,  163-165. 
posting,  contract  complete  on,  when,  164. 
containing  revocation  of  offer,  lb. 
LEX  FORI.    See  Foreign  Law. 
LEX  LOCI  CONTRA CTUS.    See  Foreign  Law. 
LIBELLOUS  WORK, 

price  of,  cannot  be  recovered,  209. 
nor  can  publisher  sue  for  pirating,  210. 
nor  will  pirating  be  restrained,  lb. 
nor  contract  to  publish,  be  enforced,  lb. 
LIMITATION,  STATUTES  OF,  38,  n.  (.r),  504-539. 

policy  of,  504,  505. 
scire  facias  on  a  recognizance  must  be  sued  within  twenty 
years,  505,  506. 
(a)  actions  on  specialties,  505-513. 

action  upon  covenant  in  mortgage  deed  to  pay  principal  and 
interest  must  be  brought  withiu  twelve  years  after  right  to 
receive  same  accrued,  38,  n.  {x),  508,  509. 
similar  limitation  in  case  of  collateral  bond  to  secure  mort- 
gage debt,  lb. 

and  on  covenant  to  pay  rent,  lb. 
action  upon  any  other   specialty  must  be  brought   within 
twenty  years  after  the  cause  of  action  accrued,  38,  505, 
506,  508. 
when  time  of  limitation  begins  to  run,  506-508. 
what  is  the  accruing  of  the  cause  of  action,  507,  508. 
in  case  of  infant,  married  woman,  or  insane  person  enti- 
tled, time  begins  to  run  from  the  removal  of  their  dis- 
ability, 509. 


INDEX.  579 

LIMITATION,  STATUTES  OF— continued. 
(a)  actions  on  specialties — continueA. 

if  defendant  be  beyond  seas  when  cause  of  action  accrues, 

time  begins  to  run  from  his  return,  509,  510. 
if  acknowledgment  be  given  in  writing  signed  by  the  party 
liable,  or  his  agent,  time   runs   from   the  date  of  that 
acknowledgment,  510-512. 
what  is  such  acknowledgment,  510-512. 
if  part  payment  of  principal  or  interest,  time  runs  from  such 

payment,  512. 
if  judgment  arrested  or  reversed  by  writ  of  error,  new  action 
may  be  brought  within  a  year  after  reversal  of  the  judg- 
ment, 512,  513. 
(6)  actions  on  simple  contracts,  generally,  513-539. 

must  be  commenced  within  six 
years  after  cause  of  action 
accrued,  513,  514, 
infant,  married  woman,  or  insane  person  must  sue  within  six 

years  from  the  removal  of  their  disability,  514. 
if  judgment  arrested    or   reversed,  a   new  action   may  be 
brought  within  a  year  after  reversal  of  the  judgment,  515. 
if  defendant  be  beyond  seas,  plaintiff  has  six  years  after  his 

return  to  sue,  516. 
meaning  of  "  beyond  seas"  different  in  4  Anne,  c.  16,  s.  19 

and  in  3  &  4  Will.  4,  c.  42,  s.  7,  lb. 
but  now  those  words  have  the  same  meaning  in  both  statutes 

by  19  &  20  Vict.,  c.  97,  s.  12,.. .517. 
joint  debtor  not  beyond  seas,  may  be  sued  alone,  and  must 

be  sued  within  the  period  of  limitation,  517-519, 
but  joint  debtor  beyond  seas  may  be  sued  within  the  period 
of  limitation  from  his  return,  although  judgment  has  been 
obtained  against  co-debtor,  519. 
if  defendant  have  given  an  acknowledgment  by  writing  signed, 

statute  suspended,  lb. 
provisions  of  Lord  Tenterden's  Act  as  to  such  acknowledg- 
ment, 519. 
acknowledgment  must  contain  or  imply  an  unconditional 
promise  to  pay,  521. 

except  where  conditional  promise  becomes  absolute 
by  performance  of  condition,  521,  523,  524,  527, 
528. 
constitutes  new  cause  of  action,  522. 


580  INDEX. 

LIMITATION,  STATUTES  OF— contmried. 

(6)  actions  on  simple  contracts  geuerally — continued. 

tliere  must  be  a  promise,  or  uckuowledgmeut  implying  one, 

to  bar  statute,  lb. 
conditional  promises,  523-528. 
conditional  ability,  525. 
semble  letter  without  prejudice  cannot  be  an  acknowledgment 

to  bar,  527. 
when  condition  performed  action  may  be  brought,  527,  528. 
precise  sum  need  not  be  named,  529. 
sufficiency  of  acknowledgmeut,  question  forjudge,  lb. 
promise  must  be  before  action,  lb. 
acknowledgmeut  by  agent,  429,  430. 
payment  of  principal  or  interest  takes  case  out  of  the  statute, 

530. 
part  payment  of  principal  sufficient,  531. 
or  part  payment  of  interest,  532. 

payment  of  interest  under  compulsion  of  law  insufficient,  532. 
but  part  payment  by  one  joint  debtor  docs  not  affect  liability 

of  other,  530. 
part  payment  may  be  made  by  bill,  531,  532. 
statement  of  a  mutual  settlement  of  account  equivalent  to 

payment,  532,  533. 
but  part  payment  must  be  on  account  of  a  greater  sum,  535. 
part  payment  may  be  proved  by  verbal  admission,  536,  537. 
merchants'  accounts  now  within  the  statute,  513,  n.  (a),  537. 
where  accruer  of  cause   of  action   fraudulently  concealed, 

when  time  of  limitation  begins  to  run,  537-539. 

LOAN, 

when  joint-stock  companies  liable  for,  894. 

to  wife  for  necessaries,  how  far  recoverable  from  husband, 
495,  n.  (d). 
LOCAL  TERMS,  64. 
LODGINGS, 

contracts  for,  128. 
LONDON, 

married  women  may  sue  by  custom  of,  342. 
LORD'S  DAY, 

contracts  of  worldly  business  on,  277-282. 
LUNATIC,  356-363,  432,  433,  493,  509,  514.    See  Parties  to 

Contracts,  hi.  ;  Limitation,  Statutes  of. 


IXDEX. 


581 


LUNAR  MONTH.     See  Month. 
MAINTENANCE  and  CHAMPERTY,  236-238. 
MANDAMUS,  WRIT  OF,  501. 
MARRIAGE, 

agreements  in  consideration  of,  within  Statute  of  Frauds,  76^ 
77,  120-122. 

^  do  not  include  ordinary  prom- 

ise of  marriage,  120. 
contracts  in  restraint  of,  228. 

tending  to  separation,  228,  229. 
brocage  contracts,  229,  230. 
promise  of,  within  2nd  Sec.  of  Infants  Relief  Act,  325  n. 

(A). 
effect  of  date  of,  on  wife's  ante-nuptial  contracts,  338,  339. 
on  her  post-nuptial  contracts,  351. 
MARRIED  WOMEN,  328-355,  483-499,  509,  51 4.     See  Parties 

TO  Contracts,  ii.,  ix.  (e)  ;  Limitation,  Statutes  op. 
MAXIMS  CITED, 

ex  nudo  pacto  non  oritur  actio,  14,  15,  103,  167. 
xmiimqiwdque  Ugamen  dissolvitur  eodem  ligamine  quo  et  liga- 

tur,  31. 
oinnis  ratihabilio  retrotrahitur  et  maiidato  cequiparatur,  202. 
ex  turpi  caitsd  non  oritur  actio,  208. 
t/i  pari  delicto  potior  est  conditio  defendentis,  303. 
persona  conjuncta  oequiparatur  inter  esse  proprio,  317. 
a  man  should  not  be  heard  to  stultify  himself,  357. 
delegatus  non  potest  delegare,  407. 
vicarius  non  habet  vicarium,  lb. 
qui  facit  per  alium  facit  per  se,  430. 
qui  sentit  commodum  sentire  debet  et  onus,  461. 
cessante  ratione  cessat  lex,  493. 
expressum  facit  cessare  taciturn,  523. 
verba  relata  inesse  videantur,  554. 

ex  antecedentibus  et  consequentibus  optima  interpretatio,  563. 
MEANING, 

words  to  be  understood  in  ordinary,  70,  561-563. 
MEMBERS  OF  JOINT-STOCK  COxMPANIES, 

liability  of,  388,  390,  402,  403. 
MEMORANDUM, 

what  sufBcient  to  satisfy  Statute  of  Frauds,  141-151. 
though  it  repudiates  the  contract,  150. 


582  INDEX. 

MERCHANTS'  ACCOUNTS, 

formerly  excepted  from  Statute  of  Limitations,  513;  n.  (a) 

537. 
this  exception  abrogated,  lb. 
MERGER, 

where  same  engagement  made  first  by  simple  contract  and 

afterwards  by  deed  between  the  same  parties,  29. 
the  two  contracts  must  be  identical,  30. 
MINUTE  BOOK, 

of   company,  signature  of  chairman  to,  sufficient  to  satisfy 
Statute  of  Frauds,  97. 
MISCARRIAGE, 

of  another,  promise  to  answer  for,  76,  105,  106,  112,  113. 
See  Guaranty. 
MISDEMEANOUR, 

when  indictments  for,  may  be  compromised,  233,  234. 
MISREPRESENTATION,  FRAUDULENT, 

when  cannot  be  sued  upon  unless  in  writing,  118-120. 
what,  sufficient  to  avoid  contract,  244-248. 
MONEY, 

when  recoverable,  where  paid  on  an  illegal  contract,  300-306. 
where  paid  for  wager  at  request  of  loser,  269, 
271.     See  also  Stakeholder. 
borrowing,  when  joint-stock  company  liable  for,  394. 
MONTH, 

calendar  or  lunar,  when,  65,  66,  541, 
MORAL  CONSIDERATION,  202. 
MUTUALITY, 

necessary  to  make  contract,  154. 
NAMES  OF  PARTIES, 

need  not  appear  in  writing,  to  satisfy  Statute  of  Frauds  if 
there  is  a  sufficient  description,  84,  85,  149. 
NECESSARIES, 

infant  may  contract  for,  309. 

what  are,  for  infant,  309-319. 

wife   may  contract   for,  486,  492,  493.     See   Parties  to 

Contracts,  ix,  (e). 
■what  are,  for  wife,  while  living  with  husband,  487-490. 

apart  from  him,  495,  499. 
NEGLIGENCE, 

gross,  unremunerated  agent  only  liable  for,  190. 
meaning  of,  191,  n.  (n). 


INDEX.  583 

NOMINAL  PARTNER,  461,  462. 
NON  COMPOS, 

contract  of  one,  356.    See  Parties  to  Contracts,  in. 
NOTICE, 

of  determination  of  agency,  432,  433. 

of  wife,  491. 
of  retirement  of  partner,  462. 
of  dissolution  of  partnership,  462,  463. 
NUDUM  PACTUM,  14-16,  103,  104,  167,  169,  175,  206. 
OBJECTS  OF  ACTS  OF  PARLIAMENT, 

contracts  contravening,  239-241. 
OBJECTS  OF  JOINT-STOCK  COMPANIES, 
to  be  adhered  to,  397. 
contracts  at  variance  with,  void,  lb. 
OBLIGATION, 

by  record  may  be  discharged  by  release,  4,  5. 
by  deed  cannot  be  got  rid  of  by  matter  of  inferior  degree, 
30,  31. 
OBSTRUCTING  COURSE  OF  JUSTICE, 
contracts,  18,  231-236. 

compromise  of  indictment  for  perjury,  18,  231. 

of  election  petition,  18,  235. 
indemnification  against  liability  as  bail,  236,  n.  (n), 
305,  n.  (0- 
OFFER, 

acceptance  of,  148-165. 
may  be  rescinded  till  acceptance,  160. 
by  letter,  163-165. 
OUTLAW,  368,  512,  513,  515.    See  Parties  to  Contracts,  vl 
OUTLAWRY, 

in  civil  proceedings  abolished,  368,  n.  (cZ),  513,  516. 
PAIS, 

estoppel  in,  meaning  of,  26,  29. 
examples  of,  27,  28. 
PAPER  or  PARCHMENT, 

deed  must  be  written  on,  5. 
PAROL, 

contracts  by,  synonymous  with  simple  contracts,  15. 
deed  cannot  be  got  rid  of  by,  30,  31. 
written  contracts  cannot  be  varied  by,  41-46. 

but  may  be  varied  by  parol  subsequently,  46. 
except  where  law  requires  a  writing,  47. 


584  INDEX. 

PAROL — continued. 

pateut  ambiguity  cannot  be  explained  by,  49. 

but  latent  ambiguity  may,  49,  52-54. 
evidence  admissible  to  annex  customary  incidents  to  certain 
written  contracts,  55,  59. 
technical  terms  explained  by,  64-68. 
cannot  be  given  to  explain  meaning  of  plain  words, 
e.  g.,  "  more  or  less  "  in  a  mercantile  contract,  70. 
demise  of  land,  if  for  not  more  than  three  years,  good  under 

Statute  of  Frauds,  75,  131,  132. 
agreement  for  such  demise,  not,  132. 
acceptance  of  proposal  in  writing,  96. 
PART  PERFORMANCE, 

rule  of  Equity  as  to,  with  reference  to  Statute  of  Frauds, 
99. 

only  applicable  to  cases  relating  to  land,  101. 
not  applicable  to  a  contract  of  service,  100. 
PARTIES, 

description  of,  when  sufficient  to  satisfy  Statute  of  Frauds, 
though  unnamed,  84,  85,  149. 
PARTIES  TO  CONTRACTS,  307-500. 
personal  inability  to  contract,  308. 
I.  infant,  308-328. 

may  contract  for  necessaries,  309, 
what  are  necessaries,  309-319. 

expenses  of  marriage  settlement,  319. 
cannot  trade,  lb. 
or  bind  himself  by  bill,  320. 
or  state  an  account,  321. 
or  bind  himself  by   any   contract   not  beneficial   t« 

him,  322. 
or  make  himself  liable  to  penalty,  lb. 
reason  why,  cannot  trade,  323, 
cannot  be  made  bankrupt,  323,  324. 
cannot  be  sued  on  contract  not  for  necessaries,  324. 
some  contracts  by,  though  not  void  but  voidable,  yet 
cannot  now  be  confirmed,  so  as  to  charge  the  infant 
when  of  full  age,  152,  325,  326. 
ratification,  on  full  age,  of  contract  made  during  in- 
fancy, no  longer  binding  even  if  in  writing,  lb. 

alteration  of  law  as  to,  by  Infants  Relief 
Act,  1874,  lb. 


INDEX.  585 

PARTIES  TO  CONTRACTS— conimwetf. 
I.  infant — continued. 

persons  who  contract  with  infants  bound,  327. 

at  all  events  by  voidable  contracts,  lb. 
n.  married  women,  328-354. 

contracts  by,  before  marriage,  at  Common  Law,  328- 
331,  338^ 

husband  must  be  joined  with  wife  in  actions  upon, 
380. 

except  in  the  case  of  bill  or  note  given  to 
her  dum  sola,  lb. 
before  marriage,  under  Married  Women's  Prop- 
erty Act,  1870,. ..331,  332,  339. 

under    Married    Women's    Property   Act, 

1874,. ..332,  333,  339. 
under    Married    Women's    Property  Act, 
1882,. ..334,  337,  339. 
during  marriage,  at  Common  Law,  339-346 
in  general  not  landing,  339-341. 

but  husband  may  avail   himself  of  them, 
343-346. 
exceptions,  w'here  husband  civilly  dead,  341. 
or  alien  enemy,  lb. 
by  custom  of  Jjondon,  342. 
in  cases  of  judicial  separation,  lb. 
choses  in   action   of,  at   Common   Law,   330,   343- 
346. 

reduction   into  possession  of,  by  husband,  330, 
346-348. 
choses  in  action  of,  under  Married  Women's  Property 

Act,  1882,... 337,  338. 
contracts     by,    during     marriage,    under     Married 
Women's  Property  Act,  1870,... 348-350. 
bind  their  separate  estate,  351-353. 
may  sue  alone  under  Married  Women's  Property  Act, 

1870,  when,  332,  349,  353. 
may  be  sued  alone  under  same  Act,  when,  332,  352, 

353. 
contracts     by,    during     marriage,    under    Married 
Women's  Property  Act,  1882,... 350,  351. 
bind  wife's  separate  property,  350. 
may  sue  or  be  sued  alone  on  such  contracts,  353. 


58G  INDEX. 

PARTIES  TO  CONTRACTS— confirmed 

III.  iusaue  persons,  356-363. 

fair  contracts  with  lunatic  executed,  valid,  360-362. 
if  executory  not,  sed  qucere,  363. 
liability  of,  for  necessaries  furnished  to  wife,  362,  492, 
493. 

IV.  intoxicated  persons,  contracts  by,  363-365. 

voidable,  not  absolutely  void,  365. 

V.  aliens,  365-368. 

friends,  365,  366. 

if  contract  by,  made  in  England,  expounded  by 
law  of  England,  365. 

if  made  abi'oad,  by  foreign  law,  lb. 

but  if  sued  on  here,  remedy  according  to  Eng- 
lish law,  333,  n.  (z),  366. 

may  acquire  real  and  personal  property  here,  367, 
368. 
enemies,  239,  341,  342,  367. 

contracts  with,  void,  lb. 

VI.  outlaws  and  felons,  368,  369. 

at  Common  Law,  liable  on  their  contracts,  but  cannot 

take  advantage  of  them,  368. 
modification  of  disabilities  of  felons,  by  recent  statute, 

368,  369. 

VII.  corporation,  aggregate,  369-381. 

general  rule,  contracts  by  deed  under  common  seal 
only,  307,  370. 

unless  where  convenience,  almost  amounting  to  neces- 
sity, requires  an  exception,  371-373. 

or  unless  created  for  mercantile  purposes,  when  it 
may  make  mercantile  contracts  in  usual  manner, 
373-377. 

for  public  purposes  under  Public  Health  Act,  379. 

not  liable  for   contracts   over   £50,  unless 
under  common  seal,  lb. 

VIII.  public  or  joint-stock  companies,  381-404. 

statutes  regulating,  381-383. 
nature  of,  as  unaffected  by  statute,  383. 
joint-stock,  or  capital  of,  divided  into  shares,  384. 
common  law  of  oi*dinary  partnership  prevails  unless 

specially  excluded,  384-386. 
transfer  of  shares  in,  385-387. 


INDEX.  587 

PARTIES  TO  CONTRACTS— cojih'/it/ed 

VIII.  public  or  joiut-stock  companies — continued. 

shares  in,  not  within  Statute  of  Frauds,  142,  387. 
rights  and  liabilities  of  members  of,  how  arising,  388— 
395. 

as  to  bills  of  exchange,  390-394. 
as  to  borowiug  money,  394. 
as  to  dealing  on  credit,  lb. 
in  all,  objects  for  which  compauy  established  must  be 
adhered  to,  397. 

contracts  not  in   accordance  with  such  objects, 
ultra  vires  and  void,  lb. 
under  Companies  Acts,  1862,  &c.,  396-404. 
manner  of  coutractiug  of,  399-400. 
attorney  authorized  under  seal  of,  may  execute 

deed  under  his  own,  400. 
bills  and  notes  of,  400-402. 
have  no  additional  powers  as  to  bills  and  notes 

under  those  Acts,  401,  402. 
remedies  against,  402,  403. 

liabilities  of  shareholders  in,  on  winding  up,  lb. 
rights  of  shareholders  in,  against  company,  403, 

404. 
transfer  of  shares  in,  404. 
liability  of  provisional  officers  of,  423. 

IX.  (a.)  agents,  405-500. 

remarks  on  contracts  by,  405. 

who  may  appoint,  405,  406. 

agent  cannot  appoint  an  agent,  406,  407. 

this  rule  how  far  qualified,  407. 
who  may  be,  generally,  408,  409. 
under  Statute  of  Frauds,  409-412. 
how  appointed,  412,  413. 
how  far  contracts  of,  bind  principal,  413-433. 
particular   and   general,  distinction   between,  where 

agent  exceeds  his  authority,  413,  414. 
examples  illustrating  distinction,  414-417. 
reason  of  distinction  between,  417,  418. 
authority  of  general  agent  measured  by  extent  of 

usual  employment,  418-424. 
principal  bound  by  contract  of  agent  made  accord- 
ing to  usage,  424-429. 


588  INDEX. 

PARTIES  TO  CONTRACTS— conftnifed 
IX.  (a.)  agents — continued. 

but  not  if  usage  at  variance  with  relation  between 

principal  ignorant  of  usage  and  agent,  427. 
nor  if  usage  arises  after  the  transaction,  428. 
powers  of,  implied  from  capacity  in  which  agent  acts, 
429. 

factors,  brokers,  partners,  wives,  servants,  &c., 
429. 
ratification,  430,  431. 

notice  of  limited  or  discontinued  authority,  431-433. 
right  of  principal  to  take  advantage  of  contracts  by, 
434-440. 

where  known,  434. 

where    agent    contracts    as    principal,    435- 
440. 
right  of  third  party  to  elect  between  principal  and 

agent,  440-446. 
such  election  once  made,  binding,  442. 
what  amounts  to  such  election,  440,  443,  444. 
but   right  may  be  qualified  where  altered  state  ol 
accounts  or  other  occurrence  makes  it  unjust  that 
election  should  be  made,  446-452. 
liabilities  of,  452,  453. 

distinction  as  to,  in  case  of  remunerated 
and  unremunerated  agents,  190. 
(6.)  partners,  453-464. 

questions    between,    illustrate    law   of   agency, 

453. 
mutual  rights  and  liabilities,  454,  455. 
who  are,  as  to  third  persons,  455. 
liabilities  of,  towards  third  persons,  454-459. 
question  to  whom  credit  given  when,  457-460. 
cause  of  action  must  arise  during  time  of  part- 
nership, 460. 
dormant,  461. 
nominal,  461,  462. 
notice  of  retirement  of  partner,  462. 

dissolution,  462,  463. 
liability  upon  bills,  463,  464. 
fraudulent   contracts,  copartner  not  liable  for, 
when,  464. 


INDEX.  589 

PARTIES  TO  CONTRACTS— con^muf^i. 
(c.)  brokers,  464^69. 

how  distinguished  from  factors,  464. 

definition  of,  464,  n.  (u). 

cannot  sue  on  contracts  made  by  them  as  such, 

465. 
generally  not  liable  on  such,  lb. 
unless  under  usage,  lb. 
in  London  must  be  duly  admitted,  lb. 
stock,   person  employing,  bound  by  custom  of 

Stock  Exchange,  59,  60. 

employed  to  speculate  cau  recover  com- 
mission, 268,  n.  (w). 
insurance,  467-469. 

{d)  factors,  464,  469-483. 

how  distinguished  from  brokers,  464. 
same  as  commission  agents,  469,  470. 
pledges  by,  471-480. 

changes  in  law  as  to,  by  Factors'  Act,   1877, 
475,  478-480. 

(e.)  wife,  483-499. 

binds  husband  on  ground  of  agency,  484. 
implied    authority   of,   when   living  with    hus- 
band, to  contract  for  necessaries,  486. 

unless     tradesmen     forbidden     to 

trust,  487,  490. 
or  she  is  forbidden  to  get  goods  on 

credit,  491. 
how    far    qualified     by    Married 
Women's    Property   Act,  1882, 
8.  1,  487. 
when  living    apart  from    husband,  to 
contract  for  necessaries,  492-494. 
where  separation  caused  by  his 

fault,  492,  494. 
by  mutual  consent,  498,  494. 
separated,  has  no  such  authority  where  allow- 
ance sufficent,  lb. 

or  agreed  on  as  such,  494. 
nor  where  separation  not  by  his  fault 
or  consent,  494. 


590  INDEX. 

PARTIES  TO  COl^TRACT^— continued. 
(e.)  wife,  separated — continued. 

what   are  necessaries  for,  while  living 

with  husband,  487-490. 
living  apart  from  him,  495-499. 
PARTITIONS, 

must  be  by  deed,  37. 
PARTNERS,  453-464.    See  Parties  to  Contracts,  ix.  (6). 
PARTNERSHIP, 

what  it  is,  454. 

test  of  liability  as  member  of,  what  is,  455. 
PART  PAYMENT, 

under    Statute   of    Frauds,   142,   143.     See    Statute  of 

Frauds,  Sec.  17. 
takes  case  out  of  Statutes  of  Limitation,  what,  512,  531-536. 

See  Limitation,  Statutes  of. 
mutual  settlement  may  amount  to,  532,  533. 
verbal  admission  sufficient  proof  of,  536,  537. 
PART  PERFORMANCE, 

rule  of  Equity  as  to,  taking  case  out  of  Statute  of  Frauds, 
99-101. 
PATENT  AMBIGUITY,  49. 

cannot  be  explained  by  verbal  evidence,  lb. 
PATENTS  FOR  INVENTIONS, 
assignable  only  by  deed,  37. 
PAYMENT.    See  Part  Payment  ;  Compulsory  Payment. 
PENALTY, 

implies  prohibition,  generally,  250-254. 
but  not  always,  255. 
PENCIL, 

signature  in,  sufficient  to  satisfy  Statute  of  Frauds,  95. 
POLICIES, 

to  be  printed  or  written,  152. 
wager,  272-276. 
sea,  153,  154,  274. 
fire,  153,  154,  273. 
life,  153,   154,  275,  276. 
POLICY  OF  THE  LAW,  209,   213,   241-243.      See  Public 

Policy. 
POST, 

letter  sent  by,  may  complete  contract,  though  it  never  ar- 
rives, 163,  164. 


INDEX.  591 

PRINCIPAL  AND  AGENT,  405-500.    See  Parties  to  Con- 
tracts, IX. 

PROHIBITION, 

penalty  implies,  generally,  250-254. 
but  not  always,  255. 

PROMISE, 

to  answer  for  debt,  default,  or  miscarriage  of  another  must 

be  in  writing,  76,  77,  80,  105.     See  Guaranty. 
by  executor  or  administrator  to  answer  damages  out  of  own 

estate,  76,  102. 

consideration  of,  77,  103-105. 
made  to  debtor  to  pay  his  debt,  114. 
to  make  will  leaving  laud,  must  be  in  Avriting,  130. 
to  pay  debt  released  by  discharge  in  bankruptcy,  204 
ratification  of,  by  infant,  alteration  in  law  as  to,  151,  325, 

326. 
to  marry,  by  infant  cannot  be  ratified  on  attaining  full  age, 

808. 
in  consideration  of  marriage,  113-115. 
illegal,  void,  208. 
to  do  several  acts,  some  illegal  and  some  legal,  20,  208. 

PROMISEE, 

disadvantage  to,  a  consideration,  170,  171. 
cousideration  must  move  from,  175. 

PROMISER, 

benefit  to,  a  consideration,  170,  171. 

PROMISSORY  NOTES, 

cousideration  presumed,  181,  182. 
given  for  illegal  consideration,  295-298. 
given  to  wife  dum  sola,  at  Common  Law,  330. 
under  Companies  Act,  1862,... 400-402. 

PROPERTY, 

separate,  of  married  woman  under  Married  Women's  Prop- 
erty Act,  1882,... 337,  338. 

includes  choses  in  action,  338. 
bound  by  their  contracts,  352,  354. 
liability  of  married  woman  limited  to,  354. 
PROPOSAL, 

in  writing  signed,   if  accepted  by  parol,  sufficient  within 
Statute  of  Frauds,  96. 


592  INDEX. 

PROSTITUTE, 

supplying  lodgings  or  clothing,  &c.,  to,  to  enable  her  to  carry 
on  her  practices,  illegal,  211,  212. 
PROVISIONAL  COMMITTEE,  423. 
PUBLIC  COMPANIES,  381-404.    See  Parties  to  Contracts, 

viir. 
PUBLIC  DUTIES, 

contracts  inconsistent  with,  235. 
PUBLIC  HEALTH  ACT, 

corporation  for  public  purposes  under,  379,  381. 

must  contract  under  common  seal,  when,  lb. 
PUBLIC  POLICY, 

contracts  opposed  to,  void,  209,  213,  241-243. 

in  restraint  of  trade  are  opposed  to,  214. 

but  partial  restraints  of  trade  are  legal,  215. 
what  are  partial  restraints  of  trade,  216- 
225. 
they  must  be  reasonable,  215,  218. 
must  be  founded  on  consideration  even  if  by 
deed,  17,  225. 
but  adequacy  of  consideration,  cannot  be 
decided  by  court,  226,  227. 
in  restraint  of  marriage  are  opposed  to,  228. 
tending  to  separation  are,  lb. 
founded  on  immediate  or  existing  separation 
not,  lb.,  229. 
marriage  brocage  contracts,  229. 
contracts  obstructing  the  course  of  justice,  231-236. 

but  indictments  for  some  misdemeanours  may  be 
compromised,  233. 
contracts  inconsistent  with  public  duties,  235. 
to  indemnify  against  illegal  acts,  236. 

against  liability  as  bail,  236,  n.  (n), 
305,  n.  (0. 
maintenance  and  champerty,  236-238. 
contracts  with  alien  enemies,  239. 

contravening  the  objects  of  Acts  of  Parliament, 
239-241. 

Apothecaries'  Act,  240. 
Winding-up  Acts,  241. 
bankrupt  laws,  240,  242. 
distinguishable  from  Policy  of  the  Law,  241,  242. 


INDEX.  59eS 

RACES, 

horse,  261-265,  270,  272. 

foot,  265,  272. 

dog,  265. 

betting  on,  264,  265,  269-271. 

agent  employed  to  bet  on,  right  of  against  his  employer,  271. 
RATIFICATION, 

of  promise  by  infant,  alteration  in  law  as  to,  151, 152,325,  326, 

of  contracts  of  company  if  ultra  vires,  invalid,  397,  398. 

of  contract  by  agent,  430,  431. 
RECEIPT, 

not  under  seal  does  not  estop  party  from  denying  the  receipt 
of  the  money,  21. 

if  under  seal  does  estop,  lb. 
RECITAL, 

in  deed,  estoppel  by,  21-25 
RECOGNIZANCES,  3. 

in  the  nature  of  a  statute  staple,  lb. 

between  the  Crown  and  subject,  lb. 

of  bail,  4. 

registering,  lb. 

scire  facias,  to  enforce,  lb. 

within  what  time,  505,  506. 
RECORD,  CONTRACTS  OF,  3,  4. 

statutes  staple  and  statutes  merchant,  3. 

recognizances,  lb. 

in  case  of  receiver  under  Court,  lb. 

incidents  of,  4. 

prove  themselves,  lb. 

enforced  by  scire  facias,  lb. 

discharged  by  release,  lb. 

remedy  on,  4,  502. 
RELEASE, 

obligation  by  record,  discharged  by,  4,  5. 

obligation  by  deed,  discharged  by,  31. 
REMEDY, 

of  married  woman,  on  contract,  at  Common  Law,  828-331, 

341-346. 
under  Married  Women's 
Property  Act,  1870,... 
348,  349. 

38 


594  INDEX. 

KEMEDY — continued. 

of  married  women,  on  contract — continued. 

uuder  Married  Women's 
Projierty  Act,  1882,... 
350,  351. 
against  married  woman,  on  contracts,  none  at  Common  Law 
unless  husband  also  liable,  340,  351. 
against  her  separate  estate,  in  Equity,  352. 
and  under  Married  Women's  Property  Act, 

1870,. ..332,  351,  352. 
under  Married  Women's  Property  Act,  1882, 
...350,  354. 
against  joint-stock  companies,  under  Companies  Act,  402,  403. 
ordinary,  by  action,  500. 

for  damages,  lb. 
specific  performance,  lb. 
scire  Jacias  the  remedy  when  contract  of  record,  4,  502. 
formerly,  action  of  debt,  remedy  in  every  case  of  pecuniary 
duty  from  one  person  to  another,  502. 

action  of  covenant,  remedy  on  contract  by  deed,  503. 
assumpsit  remedy  on  simple  contract,  lb. 
action  of  account,  lb. 

must  be  pursued  within  times  of  limitation,  lb.     See  Limi- 
tation, Statutes  of. 

REMUNERATED,  and  UNREMUNERATED  AGENTS,  190. 

REPUDIATION 

of  contract,  memorandum  containing,  may  satisfy  Statute 

of  Frauds,  150. 
of  wager,  when  it  entitles  party  to  recover  stake,  270,  305, 
n.  (f). 

where  betting  agent  employed  and  pays,  271. 
of  illegal  transaction,  when  it  entitles  party  to  recover  back 
money  paid,  305,  306. 
REQUEST, 

when  previous,  required,  194. 

•      implied,  194-202,  204,  205. 

RESCINDING, 

of   contracts  under  Statute  of  Frauds  may  be  by  parol,  151. 

See  Statute  of  Frauds. 
offer  may  be  rescinded  until  acceptance,  160,  164. 
contract  tainted  with  Fraud,  option  of,  244. 


ixDEx.  595 

RESIGNATION  BONDS,  286-290. 
RESTRAINT  OF  TRADE, 

coutracts  iu,  17,  20,  214-228.    See  Public  Policy. 
if  general,  void,  215, 
if  partial,  legal,  lb. 

if  reasonable,  and  for  a  consideration,  lb, 

must  be  reasonable,  20,  215,  218. 

must  be  founded  on  consideration,  215, 

225. 
though  by  deed,  17,  215. 
but  court  will  not  decide  upon  adequacy 
of  consideration,  226. 
instances   of,  held   good,  217-220,  222-225, 
227. 

held  bad,  218-221. 
unlimited  as  to  time,  217. 
limited  as  to  time,  227. 
unlimited  iu  point  of  space,  221,  224,  225. 
doctrine  as  to  limits  does  not  apply  to  sale  of 

secret,  224. 
where    limited    in    point    of  space,    rule  for 
measuring  distance,  225. 

REVENUE  ACTS, 

when  prohibition  in,  makes  contract  illegal,  254—256. 

SALE  OF  GOODS, 

of  value  of  £10  or  upwards,  141-151.    See  Statute  of 
Frauds,  17th  Sec. 

SALES  ON  SUNDAY,  280-282. 

SCIRE  FACIAS, 

to  enforce  record,  4,  502. 

on  recognizance,  limitation,  505,  506. 
SEAL, 

contracts  under,  3,  5,  6. 

one  of  three  classes  of  contracts,  3. 

to  deeds,  7. 

corporations  must  contract  under  common,  when,  370-381. 

when  not  necessary  to  contracts  of  company  under  Com- 
panies Acts,  1862, 1867,. ..399,  400. 
SEALING, 

essential  to  a  deed,  6.  • 


5dC)  INDEX. 

SECURITIES, 

for  gaming  consideration,  295-298. 

SECRET, 

sale  of,  under  stipulation  restraining  vendor  generally,  good, 
224. 
SEDUCTION, 

past,  no  consideration  to  support  a  promise,  17,  211. 
bond  for  maintenance  founded  on,  good,  17. 
SEPARATE  ESTATE.    See  Property. 
SEPARATION, 

contracts  tending  to,  18,  228. 
founded  on  immediate  or  existing,  229. 
SERVANT, 

where  service  of,  hired  for  a  year,  to  begin  at  a  future  time, 

writiug  necessary,  135. 
under  verbal  contract  for  yearly  service,  remedy  of,  where 
discharged  before  year  out,  100,  139. 
SHARE, 

iu  public  companies,  384. 
transferring,  385-387. 
not  within  Statute  of  Frauds,  142,  387. 
transfer  of,  in  Companies  under  Companies  Acts,  404. 
SHIP, 

conveyance  of  property  in,  when  to  be  in  writing  under  seal, 

38." 
insurance  of,  without  interest,  invalid,  274. 
SIGNATURE, 

not  necessary  to  a  deed  at  Common  Law,  5. 
under  Statute  of  Frauds,  of  party  to  be  charged,  93.     See 
Statute  of  Frauds,  Sec.  4. 

does  not  matter  where  signature  placed,  93. 

of  party  to  be  charged  sufficient,  96. 

may  be  in  double  capacity  as  agent  and  guarantor, 

116. 
of  chairman  affixed  to  minute  book  of  company  suf- 
ficient to  satisfy  statute,  97. 
of  party  to  be  charged  under  Sec.  17,. ..146. 

one  cannot  sign  for  the  other,  146,  409,  410. 

but  ageiit  of  one  can  sign  for  the  other,  411. 

of  agent  as  to  acknowledgment  of  specialty  debt,  510.  529. 

of  simple  contract  debt,  530. 


INDEX.  597 

SIMONY,  282-290. 
SIMPLE  CONTRACTS, 
what  are,  5,  40. 

difference  between,  and  contracts  by  deed,  40,  41,  165, 
written  or  not  written,  practical  difference  between,  41. 
if  written,  proof  of,  41. 

must  be  proved  by  the  writing  only,  lb. 

reason  of  this  rule,  lb. 
cannot  be  altered,  added  to,  or  diminished  by  con- 
temporaneous words,  42,  43. 
nor  by  evidence  of  the  parties  having  acted  on  a  par- 
ticular supposition  of  meaning,  46. 
but  may  be  shown  to  have  been  varied  by  parol  sub 

sequeutly,  lb. 
but  not  where  the  law  requires  a  writing,  46,  47. 
patent  and  latent  ambiguities  in,  49. 
may  be  qualified  by  usage  and  customary  incidents, 

55. 
usage  or  custom,  55,  56. 
customary  incid*  nts  may  be  annexed,  55-63. 
technical  or  local  terms  in,  64-68. 
but  if  the  meaning  be  plain  it  cannot  be  contradicted, 

68. 
evidence  of  usage  does  not  raise  a  conclusion  of  law 

but  of  fact,  70,  71. 
court  to  construe  document  when  meaning  of  words 

ascertained,  71. 
custom,  &c.,   does  not  apply  to  unusual  contracts, 

lb. 
rules  as  to  written  contracts  do  not  apply  unless  con- 
tract complete,  lb. 
writing  necessary  to  some,  41,  74- 
Statute  of  Frauds,  74-151. 
objects  of,  75. 
4th  Section  of,  76. 
17th  Section  of,  141. 
contracts  provided  for  in  4th  Section,  76,  77. 

consideration    must    appear     in,    when, 

77-80. 
expressly  or  by  implication,  80. 
except  in  guaranties,  77,  79,  80,  115. 
all  the  other  terms  must  appear  in,  80. 


598  INDEX. 

SIMPLE  COl^TRACTS— continued. 
Statute  of  Frauds — coniinued. 

agreement  need  not  be  contained  in  one  writing,  85, 
146. 

but  if  in  several  papers,  they  must  be 
connected  among  themselves,  89, 
147. 
signature  of  party  to  be  charged,  93,  96. 

if  party  intended  to  bind  himself  by  his  signa- 
ture, immaterial  where  he  signs,  93. 
if  party  to  be  bound  signs,  other  party  need 
not,  96. 
agreement  must  exist  before  action  brought  upon  it, 

97. 
if  unwritten,  not  void,  but  no  action  can  be  brought 
on  it,  97,  98. 
both  parties  must  consent  to  the  same  thing,  153. 
mutuality  necessary  in,  154,  155. 
assent  must  be  to  precise  terms  offered,  158. 
when  offer  accepted  binding  on  both,  160. 
offer  may  be  rescinded  until  accepted,  160,  164. 
require  a  consideration,  165. 
maxim  oi  nudum  pactum,  14,  15,  103,  167. 
reason  of  this  rule,  168. 
consideration  of,  165. 

general  definition,  170,  171,  204. 

benefit  to  the  promiser  or  disadvantage  to  promisee, 

170, 171. 
must  move  from  promisee,  175. 
adequacy  of  consideration  not  important,  176-180. 
but  must  be  of  some  value,  180. 

but  bills  and  notes  always  presumed  to  be  on  con- 
sideration, 181,  182. 
forbearance  a  consideration,  183-186. 
of  doubtful  claim,  186. 
of  unfounded  claim,  186,  187. 
trust  a  consideration,  189. 
remunerated  and  unreniunerated  agents,  190. 
being  compelled  to  do  another's  duty  sufficient  con- 
sideration to  support  a  promise  to  indemnify,  192, 
197. 
executory  considerations,  194,  195. 


INDEX.  599 

SIMPLE  COl^TRACT^— continued. 
consideration  of — continued. 

executed  considerations,  194-202. 

difference  between,  aud  executory,  194. 

require  previous  request,  lb. 

when  previous   request  implied,  197- 

202,  204,  205. 
where  one  is  compelled  to  do  another's 

duty,  197,  205. 
where  benefit  of  consideration  adopted, 

199,  205. 
as  in  case  of  goods  supplied  to  children, 

200. 
if  the  adopter  had  power  to  accept  or 

refuse,  201. 
voluntary   performance    of    another's 
duty,  201,  205. 
moral  considerations,  202. 
general  summary  as  to,  204,  205. 
promise,  205. 

lituitation  of,  when  implied  by  law,  206,  207. 
time  of  limitation  of  actions  on,  513,  514.    See  Limitation, 
Statutes  of. 
SPACE, 

contract  unlimited  in  point  of,  in  restraint  of  trade,  when 
valid,  224,  225. 

formerly  not,  214. 
SPECIALTY, 

action  on,  when  to  be  brought  within  20  years  afler  cause 
of  action  accrued,  38,  n.  (x),  505,  506,  508,  509. 

when  within  12  years  after  accruer  of  right,  38,  n. 
(x),  508,  509. 
SPECIALTY    CONTRACT,   2,  5-39.      See    also  Limitation, 

Statutes  of,  (a). 
SPECIFIC  PERFORMANCE, 

when  a  remedy  on  contract,  500. 
STAKE.    See  Stakeholder. 
STAKEHOLDER, 

money  deposited  with,  when  recoverable  from,  270,  805,  n.  (t.) 
STATUTE,  CONTRACTS  ILLEGAL  BY,  209,  250-293. 

are  so  whether  forbidden  expressly  or  by  implication,  18, 
250. 


600  INDEX. 

STATUTE,  CONTRACTS  ILLEGAL  BY— continued. 

peualty  implies  prohibition,  250,  251. 

immaterial  whether  forbiddeu  for  the  sake  of  the  revenue  or 

any  other  object,  254. 
but  illegality  incidental  to  contract,  does  not  avoid  it,  256. 
gambling,  260-272. 
horse-races,  261-265,  267,  269-272. 
betting  on  races,  261-265,  269-271. 
wagers  on  games,  260,  261,  265. 
bets  not  on  games,  265-269. 
contracts  by  way  of  gaming  or  wagering  not  unlawful  at 

Common  Law,  260. 
but  now  all  such  contracts  are  void  by  statute,  260,  266- 

269. 
wager  policies,  272-276.    See  Insurance. 
stock  jobbing  contract,  void  as  a  wager,  268. 
contracts  of  worldly  business  on  the  Lord's  Day,  277-282. 
Sunday  sales,  280-282. 
simony,  282-290. 
resignation  bonds,  if  general.  289. 

or  if  not  in  favour  of  certain  specified 
relations,  290. 
illegal  charges  on  benefices,  lb. 
illegal  weights  and  measures,  291,  292. 
contracts  by  illegal  companies,  292,  293. 
bills  and  notes  and  other  securities  given  for  illegal  consid- 
erations, how  far  invalidated,  296-298. 

for  gaming  considera 
lions,  lb. 
STATUTE  OF  FRAUDS,  74-151. 

renders  signature  necessary  to  certain  contracts,  5. 
authors  of,  74. 
objects  of,  75. 
4th  Section  of,  76. 

contracts  provided  for  in,  76,  77. 

when  consideration  must  appear  in,  77- 

80. 
expressly  or  by  implication,  80. 
except  in  case  of  guaranties,  77,  79,  80, 

115. 
all   the   other   terms   must  appear  in, 
80. 


INDEX.  601 

STATUTE  OF  FRAUDS— continued 
4th  Section — continued. 

contracts  provided  for  in — contviued. 

need  not  be  contained  in  one  writing, 

85. 
if  in  several,  they  must  be  connected  in 

sense  among  themselves,  89,  90. 
signature  of  party  to  be  charged,  93,  96. 
if  party  intended  to  bind  him- 
self,   immaterial     where     he 
signs,  93. 
if    party    to   be  charged   sign, 
sufficient,  96. 
agreement    must    exist    before   action 
brought,  97. 

if  unwritten,  not  void,  but  will 

not  support  action,  97. 

if  unwritten  but  part  performed, 

rule  of  Equity  as  to,  99-101. 

by  executors,  &c.,  to  answer  damages 

out  of  their  own  estate  must  be  in 

writing,  76,  102. 

consideration  necessary  in,  103- 
105. 
guaranty,  76,  77,  79,  80,  105-120. 

person   whose   debt,  &c.,  guaran- 
teed, how  far  must  continue  lia- 
ble, 106-112. 
default  or  miscarriage   in   breach 
of  any  duty,  within  the  statute, 
113. 
new    consideration   does  not  dis- 
pense with  necessity  of  writing, 
112. 
the  promise  within  the  statute  must 
be  one  made  to  the  creditor,  114. 
consideration  of.  need  not  be   in 

the  writing,  77,  79,  80,  115. 
fraudulent     representations      not 

within  Statute  of  Frauds,  117. 
but  within  9  Geo.  4,  c.  14,  s.   6, 
117,  118. 


602 


INDEX. 


STATUTE  OF  FRAVDS— continued. 
4th  Section — continued. 

contracts  provided  for  in — continued. 

agreements   in    consideration   of   mar- 
riage, 76,  77,  120,  122. 

mutual  promises  to  marry  not  in- 
cluded iu,  121. 
contracts  for  sale  of  lands,  7G,  77,  127. 
what  is  such  contract,  127-134. 
fructus  industriales,  125. 
emblements,  lb. 
timber,  126,  127,  142. 
fixtures,  127,  142. 
lodgings,  128. 
giving  right  to   kill  and   take 

away  game,  130. 
agreement  for  lease,  1 32. 
right    of    action   only  affected,   97, 
131. 

contracts  not  to  be   performed 
within  a  year,  77,  134-139. 
possibility   of   extending 
beyond  a  year  does  not 
make    writing    neces- 
sary, 134-136. 
if  all  to  be  done  by  one 
party   is    done   within 
the  year,  he  may  sue 
the    other    without    a 
writing,  137,  138. 
shares  in  public  companies  not  within,  142,  387. 
17th  Section  of,  141-151. 

sale  of  goods  for  price  of  £10  or  upwards,  lb. 
what  are  goods  within  this  section,  142. 
difference  between  this  section  and  4th,  142-144, 

148-150. 
acceptance   of   goods,   part    payment,  giving  of 

earnest,  141-143. 
non-compliance  with,  does  not  make  contract  void, 

as  formerly  thought,  143,  144. 
this  section  extended  to  goods  not  in  existence,  145. 
and  to  goods  of  value  instead  of  price  of  £10,  lb. 


INDEX.  603 

BTATUTE  OF  FRAViyS— continued. 
17th  Section — continued. 

rules  as  to  the  written  memorandum  analogous  to 

those  under  4th  Section,  146,  147,  149. 
signature  of  party  to  be  charged,  146. 
names  of  parties,  or  a  sufficient  description,  must 

appear  in  memorandum,  148,  149. 
one  cannot  be  the  other's  agent,  146,  409,  410. 
but  agent  of  one  party  may  act  as  agent  of  the 

other,  411. 
several  documents  may  be  read  together,  146. 
meaning  of  ■word  bargain  in,  148,  149. 
memorandum  may  be  sufficient  to  satisfy,  though  it 

repudiates  the  contract,  150. 
contracts  under,  may  be  rescinded  by  parol,  151. 
shares  in  public  company  not  within,  142,  387. 
STATUl^ES, 

rule  of  construing  words  ejusdem  generis  in,  279. 
rule  as  to  commencement  of  operation  of,  331. 
mode  of  construing,  generally,  556,  557. 
STATUTES  OF  LIxMlTATION.    See  Limitation,  Statutes  of. 
STATUTES  MERCHANT, 
contracts  of  record,  3. 
when  they  bind  lands,  4. 
STATUTES  STAPLE, 

contracts  of  record,  3. 
when  they  bind  lands,  4. 
STATUTE  OF  USES, 

bargain  and  sale  under,  17. 
covenant  to  stand  seised  under,  lb. 
STOCK  EXCHANGE, 

customs  of,  binding  on  person  employing  broker  on,  59,  60. 

but  must  be  reasonable  and  legal,  60. 
broker  employed  to  speculate  on,  can  sue  for  commission,  &c., 
268. 
STOCK  JOBBING, 

Acts  now  repealed,  277,  n.  (a). 

but  contract  by  way  of,  may  be  void  as  a  wager,  268. 
STOPPAGE  IN  TRANSITU, 
what,  481,  482. 
how  right  defeated,  482. 


G04  INDEX. 

SUNDAY  SALES,  280-282. 
SURRENDER 

of  interests  in  lands  must  be  by  deed,  when,  37. 
TECHNICAL  TERMS, 

explained  by  parol,  64-68. 
meaning  of,  may  be  for  jury,  70,  71,  542. 
TERMS, 

technical  or  local,  explained  by  parol,  64-68. 

meaning  of,  may  be  for  jury,  70,  71,  542. 
THREAT 

to  prosecute,  how  far  vitiates  subsequent  agreement,  232. 
TICKET, 

acceptance  of,  without  objection,  how  far   assent  to   terms 
thereon,  154. 
TIMBER, 

contract  for  sale  of,  126,  127,  142,  143. 
acceptance  of  growing,  143,  n.  (c). 
TITLE 

to  goods,  rule  of  law  as  to  giving,  156,  483. 

where  fraudulent  contract  unrescinded, 

248,  249. 
qualified  by  Factors'  Acts,  483. 
TORTS  AND  CONTRACTS,  1. 

all  subjects  of  Common  Law  actions  divisible  into,  2. 

TRADE, 

contracts  in   restraint  of,  17,   20,   214-228.     See  Public 

Policy;  Restraint  of  Trade. 
infant  cannot,  319-324. 

TREATING, 

contract  for,  void,  235. 

TRUST, 

a  consideration,  189. 

ULTRA  VIRES, 

contracts  of  companies,  void,  397,  398. 

UNDERWOOD, 

sale  of  growing,  to  be  cut  by  purchaser,  an  interest  in  land, 
126. 
UNREMUNERATED  AGENTS,  190. 
UNWRITTEN  SIMPLE  CONTRACT, 

difference  between,  and  written,  41,  74. 


INDEX.  605 

URBAN  AUTHORITY, 

under  Public  Health  Act,  1875,  a  corporation,  379. 
not  liable  for  contracts  over  £50  unless  under  seal,  379-381. 
what  are  such  contracts,  380,  381. 

USAGE, 

may  qualify  written  contracts,  when,  55-71. 

parol  evidence  admissible  to  prove,  55,  59. 

evidence  of,  does  not  raise  a  conclusion  of  law  but  of  fact, 

70,  71. 
inadmissible  to  contradict  what  is  plain,  68-70. 
or  where  usage  contradicts  law,  70. 
principal  bound  by  contract  of  agent  according  to,  59,  60, 

424-429. 
unless  usage  at  variance  with  relation  between  them,  and 

principal  ignorant  of  it,  427. 
must  be  cotemporaneous,  428. 
if  deviated  from,  principal  not  bound,  428,  429. 

USES,  STATUTE  OF, 

bargain  and  sale  under,  17. 

covenant  to  stand  seised  to  uses  under,  lb. 

USURY  LAWS, 

now  abolished,  260  n.  (e). 

VALUE, 

consideration  must  be  of  some,  180. 
of  £10,  sale  of  goods  of,  145. 

of  £50,  contracts  exceeding,  by  urban  authority,  to  be  under 
seal,  379. 

VENDOR  AND  PURCHASER, 

must  be  named,  or  sufficiently  described  in  memorandum,  to 
satisfy  Statute  of  Frauds,  82-85. 

VERBAL  EVIDENCE, 

cannot  vary  written  contract,  41,  43. 

VOTERS, 

contracts  to  induce,  to  vote,  void,  235. 

WAGERING, 

contracts  by  way  of,  not  unlawful  at  Common  Law,  267. 
but  void  by  Statute,  260,  266. 
WAGER  POLICIES,  27^276. 
WAGERS,  260-272. 


606  INDEX. 

WEIGHTS  AKD  MEASURES, 

by  what  Act  dow  regulated,  291. 
coutraets  not  iu  terms  of  imperial,  lb. 

WIFE,   328-355,  483-499.      See    Parties  to  Coktracts,   ii.; 

IX.  (e). 
WILL, 

nuncupative,  of  personalty,  since  Statute  of  Frauds,  76. 
of  land,  promise  to  make,  within  4th  section  of  Statute  of 
Frauds,  ISO. 

WINDING  UP  ACTS, 

agreement  contrary  to  policy  of,  241. 

WORDS, 

to  be  understood  in  ordinary  sense,  70,  561-568. 

WRITING, 

sealed  and  delivered  is  a  deed,  5,  14. 

on  paper  or  parchment,  essential  to  a  deed,  5. 

where  necessary,  subsequent  variation  by  parol  not  allowed, 

46,  47. 
contract  for  the  purchase  of  land,  must  be  in,  76,  77,  122. 
written  contracts  must  be  proved  by,  41. 
necessary  to  some  simple  contracts,  41,  74. 
agreement  need  not  be  contained  in  one,  85, 146. 

if  in  several  Avritings,  they  must  be  connected 
among  themselves,  89, 147. 
not  dispensed  with  by  new  consideration,  112. 
contracts  not  to  be  performed  within  a  year,  must  be  iu,  76, 

77,  134. 
contracts  of  insurance  to  be  in,  or  printed,  152. 
promise  to  pay  debt  barred  by  Statute  of  Limitations,  must 

be  in,  153,  510,  519,  520. 

WRITTEN  SIMPLE  CONTRACTS, 

difference  between,  and  not  written,  41,  74. 
proof  of,  41.    See  Simple  Contracts. 


THE  END. 


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